Johns Items

Thursday, April 23, 2009

Angela Wileman and sons win Hague Convention Case in Ireland

This morning in the Dublin High Court Angela Wileman won her Hague Convention case in Dublin. Devon County Council's case to remove her son Lucas (6) from her was struck out.

John Hemming MP said "I am pleased for this result. Angela, Lucas and Marco can now get on with their lives in Ireland. Lucas is doing well at school and I am quiet surprised at the lengths to which Devon went to try to "extradite" a 6 year old boy from Ireland to put him in Foster Care in England."

"I have asked Devon to do an investigation into what was done in Devon. I do not think this is something driven at a cabinet member level. These decisions were made by practitioners. We do, however, need an inquiry in Devon into what was done, why it was done and how much it cost. We also need an English inquiry into how such an absurd process was allowed to continue."

The eldest of the four children was seriously ill, and the local authority had concerns about the way in which the parents were caring for the entire family in what was acknowledged to be a stressful situation. Following a strategy meeting at which the mother was unwilling to discuss the situation of the children, the three younger children were taken into foster care under ex parte emergency protection orders (EPOs), each to last 8 days (the eldest child, then 17, refused to comply with the order relating to her). The local authority's stated aim was the organisation of medical examinations without any risk of parental interference. Interim care orders (ICOs) were obtained, and after just over a month in foster care the three children were placed with the maternal grandparents. It was eventually accepted that it was in the best interests of the three children, one of whom, aged 15, had already moved back to the parents' home against the wishes of the local authority, to return to live with the parents under a new interim care regime. Care plans presented to the court, which provided that if the authority were to remove the children first consideration would be given to placement with the maternal grandparents and that the local authority would endeavour to give the parents at least 24 hours' notice of removal unless the situation was deemed to be an emergency, were not approved by the court until the plans had been revised to provide that, if the local authority decided that the children should be removed from the parents' care, the matter would be put before the court for determination. Following successful rehabilitation to the parents under ICOs, the local authority sought an order giving it permission to withdraw its application for care orders.

Held - giving the local authority leave to withdraw its applications for care orders -

(1) There were occasions, albeit rare, in which, however desirable the pursuit of truth might be, it had to give way to a child's true best interests. This was a situation in which issues were best left unresolved by the judicial process, and ought to be consigned to resolution within the privacy of the family (see para [25]).

(2) The care plans originally presented to the court by the local authority had not been acceptable. It seemed that not all local authorities had yet appreciated the imperative demands of the Human Rights Act 1998, or yet adjusted their day-to-day practices to meet those demands. Repeating what had been said in Re G (Care: Challenge to Local Authority's Decision) [2003] EWHC 551 (Fam), a local authority, even if clothed with the authority of a care order, was not entitled to make significant changes in the care plan, or to change the arrangements under which the children were living, let alone to remove the children from home if they were living with their parents, without properly involving the parents in the decision-making process and without giving the parents a proper opportunity to make their case before a decision was made (see paras [29], [31]).

(3) A number of lacunae in the statutory scheme made it especially important that both the local authority and the justices in the family proceedings court (FPC) approached every application for an EPO with an anxious awareness of the extreme gravity of the relief being sought and a scrupulous regard for the human rights of both the child and the parents (see para [41]).

RE B (CARE: INTERFERENCE WITH FAMILY LIFE)

[2003] EWCA Civ 786

Court of Appeal

Thorpe LJ and Bodey J

21 May 2003

Care proceedings - Threshold met - Failure to apply welfare test - Judge must consider Art 8 rights of all family members before empowering authority to remove child - Wrong to put obligation on parents to apply to veto removal

In the course of confidential communication with her psychiatrist, a 22-year-old girl from an orthodox Hasidic Jewish family related that she and some of her sisters had had some sexual involvement with their grandfather. The psychiatrist informed a practising social worker who alerted the local authority. The local authority sought orders in wardship and subsequently invoked intervention under the public law provisions of the Children Act 1989, although no formal application was made. The judge ordered that there should be an interim care order in respect of each of the six minor children to the local authority. By way of a protective recital, the judge provided that the local authority would give the parents 48 hours' notice if they decided to remove the children, thereby giving the parents the opportunity to seek a judicial veto. The parents appealed the order on the grounds that there was no evidential basis upon which the judge could find that the threshold in s. 31 of the Children Act 1989 had been crossed, that the judge failed to consider the welfare exercise and that the judge was wrong in putting the obligation on the parents to apply to veto removal rather than requiring the local authority to apply for permission to remove the children.

Held - granting the parents' appeal and adjourning the application for an interim care order with liberty to the parents to apply on short notice -

(1) The judge had to exercise a broad and worldly judgment. While there were considerations going each way, he had been fully entitled to reach the conclusion that the s. 31 threshold had been crossed. His assessment of the value of the psychiatrist's reports was entirely legitimate (see paras [26], [32]).

(2) There was a vital judicial task between finding the s. 31 threshold crossed and endorsing the care order. Where the application was for a care order empowering the local authority to remove a child or children from the family, the judge in modern times could not make such an order without considering the rights of the adult members of the family and of the children of the family under Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. He could not sanction such an interference with family life unless he was satisfied that it was both necessary and proportionate and that no less radical form of order would achieve the essential end of promoting the welfare of the children. The judge had failed to conduct this welfare exercise (see paras [34], [35]).

(3) The judge should have put the obligation upon the local authority to apply for permission to remove rather than on the parents to apply to veto the removal. The proper order was that the local authority's application for an interim care order should stand adjourned with liberty to apply on short notice (see para [36]).

Per curiam : the practical consequence of the local authority's failure to issue an application for the interim care order in the relevant family proceedings court was that the children were denied the advantage of representation in the proceedings. Neither a guardian nor a solicitor had been appointed for them. CAFCASS London arranged for a Jewish guardian to attend the appeal hearing on very short notice (see paras [15], [16]).

A COUNTY COUNCIL v A MOTHER, A FATHER AND X, Y AND Z (BY THEIR GUARDIAN)

During the 1990s an American mother lost custody of her son and was convicted of an offence after it was found that she had deliberately caused the child's numerous illnesses by the administration of laxatives. She was required to undergo therapy for Munchausen Syndrome by Proxy (MSBP) and thereby met her second husband, a social worker who was carrying out research into that condition. They subsequently married in the UK and the mother became pregnant. The local authority learned of the pregnancy and received information about the mother's past from the American authorities. The local authority expressed concern about the risk of harm to the unborn child, a case conference was held and the mother and husband reluctantly agreed to assessment by an expert. The day the child was born she was removed to foster care under an emergency protection order and the parents and both sets of grandparents later had successful contact. Meanwhile the local authority's application for a care order was transferred to the High Court and both the guardian ad litem and psychiatrist reported that the parents posed a risk to the child. The care plan proposed that she be placed with an adoptive family as soon as possible. At the hearing of the care application the father withdrew from the proceedings, and the mother's legal team also withdrew on the basis that she was requiring them to conduct her case unreasonably. A second adjournment was refused and the mother, albeit distressed on occasion, proceeded to conduct her own case with the assistance of a McKenzie friend. A care order and a freeing order were subsequently made. The judge refused the mother leave to appeal and her renewed application in person before the Court of Appeal was refused. The court concluded that no error of law or any failure of procedural unfairness had been demonstrated. The child was adopted in March 2000 and no provision for future direct contact was made. The parents alleged that the removal of the child at birth and the care and freeing orders breached Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and that the procedures which followed were in breach of Art 6.

Held - unanimously finding violations of Arts 6 and 8 with respect to the removal of the child at birth, and Art 8 by six votes to one with respect to procedures concerning the care and freeing applications; unanimously holding that no separate issue arose under Art 12 and that damages were payable under Art 44 -

(1) The complexity of the case, importance of what was at stake and highly emotive subject matter led to the conclusion that the principles of effective access to the court and fairness required that the mother receive the assistance of a lawyer. The procedures adopted prevented the parents from putting forward their case in a proper and effective manner and although it was desirable for the child's future to be settled as soon as possible, the draconian action of proceeding to a full and complex care hearing, followed within one week by the freeing application, both without legal assistance, was not necessary. The parents did not have a fair and effective access to court as required by Art 6 as the possibility of some delay was not so prejudicial to the child's interests as to justify the procedure adopted and the assistance of a lawyer was indispensable.

(2) The local authority had to be able to take appropriate steps to prevent harm to the child and the decision to obtain an emergency protection order after her birth was necessary in a democratic society to safeguard her health and rights. However, there was no suspicion of life-threatening conduct from the mother immediately after the birth and it was not apparent why the child could not have spent some time with her in hospital under supervision. Removing the child from her mother after birth was not supported by relevant and sufficient reasons and could not be regarded as having been necessary in a democratic society for the purpose of safe-guarding the child. There was therefore a breach of the parent's rights under Art 8. The circumstances leading to a breach of Art 6, having regard to the seriousness of what was at stake, also prevented them from being involved in the decision-making process to a degree sufficient to provide them with the requisite protection of the interests under Art 8.

The position is not altered by the fact that in the instant case the council delegated its adoption functions to its social services committee. As was pointed out by Slade J in Manton v Brighton Corp [1951] 2 All ER 101, [1951] 2 KB 393, and as was emphasised by Donaldson LJ in his judgment, delegation by a principal to an agent does not deprive the principal (in the words of the Lord Justice) of 'a residual responsibility for the activities

Friday, May 12, 2006

Notes

Remember the Parliamentary Papers Act 1840 covers the answer.

There was a strong case for [absolute privilege] in 1957 at the time of the Strauss case. . . . That strong case is still there. However, we have had the last 40 years in which the qualified privilege of common law seems to have enabled members of both Houses to carry out their functions satisfactorily'[168].

122. In this regard the court decision in Rost v Edwards[178] is a cause for concern. In 1989 Mr Peter Rost, a member of Parliament, sued the writer of an article in The Guardian newspaper for libel in asserting that Mr Rost had been seeking to sell confidential information obtained by him as a member of the House of Commons select committee on energy. As part of a defence of justification, the defendants asserted that Mr Rost should have registered his parliamentary consultancies. In response Mr Rost wished to establish, by reference to the published rules and to Erskine May, the requirements laid down by the House for the registration of pecuniary interests, and to call evidence on the nature of his consultancies and the reason why he had not registered them. The Solicitor General submitted that the House of Commons register of members' interests and the related practice and procedure formed part of the proceedings of Parliament. The trial judge rejected this submission, and held that registration of members' interests is not a proceeding in Parliament.[179]

For the purposes of article 9 of the Bill of Rights 1689 `proceedings in Parliament' means all words spoken and acts done in the course of, or for the purposes of, or necessarily incidental to, transacting the business of either House of Parliament or of a committee.(2) Without limiting (1), this includes:(a) the giving of evidence before a House or a committee or an officer appointed by a House to receive such evidence(b) the presentation or submission of a document to a House or a committee or an officer appointed by a House to receive it, once the document is accepted(c) the preparation of a document for the purposes of transacting the business of a House or a committee, provided any drafts, notes, advice or the like are not circulated more widely than is reasonable for the purposes of preparation(d) the formulation, making or publication of a document by a House or a committee(e) the maintenance of any register of the interests of the members of a House and any other register of interests prescribed by resolution of a House.(3) A `committee' means a committee appointed by either House or a joint committee appointed by both Houses of Parliament and includes a sub-committee.(4) A document includes any disc, tape or device in which data are embodied so as to be capable of being reproduced therefrom.'

Chapter 5

CHAPTER 5: CONTROL BY PARLIAMENT OVER ITS AFFAIRS

229. Parliamentary freedom of speech guaranteed by article 9 is one facet of the broader principle that what happens within Parliament is a matter for control by Parliament alone. Such matters will not be reviewed by the courts.[264] In a recent case the judicial committee of the Privy Council summed up the position:

`So far as the courts are concerned, they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges.'[265]

This principle is usually known as `exclusive cognisance': cognisance here bears its obsolete legal meaning of jurisdiction, or the right to deal with a matter judicially.[266]

230. The principle manifests itself as a collection of related rights and immunities. It is perhaps these privileges particularly which must be measured against the test we set ourselves at the outset of our inquiry: is each right and immunity necessary today, in its present form, for the effective functioning of Parliament? does it balance fairly the needs of Parliament with the rights of the individual?

Right of each House to provide for its proper constitution

231. Each House has the right to provide for its proper constitution. The House of Lords alone decides any question relating to the succession to a peerage. The House of Commons may determine whether members of that House are qualified to sit and vote, although the right to determine whether members are duly elected has been transferred by statute almost wholly to the courts. The Commons retain the power to expel by simple resolution, unchallengeable in the courts. It also decides when a writ for a by-election shall be issued. A leading authority summarised the position as follows:

`. . . the ordinary civil and criminal jurisdiction of the courts does not extend to determining the rights of members to sit in the House, and the courts equally have nothing to do with questions affecting its membership except in so far as they have been specially designated by law to act in such matters . . .'.[267]

This right is an attribute of a sovereign legislature. No change is called for here.

Right to judge lawfulness of own proceedings

232. Both Houses have long claimed, and succeeded in maintaining, the right to be the sole judges of the lawfulness of their own proceedings and to determine, or depart from, their own codes of procedure. Courts of law accept Parliament's claim that they have no right to inquire into the propriety of orders or resolutions of either House relating to their internal procedure or management. Except for purposes of statutory interpretation, the courts do not `look behind the Act' or consider themselves competent to consider the processes within Parliament preparatory to enactment.[268] With minor statutory exceptions[269], the two Houses have a substantial measure of independence in the way in which they organise their business and regulate their internal organisation. Speaking in his judicial capacity in 1974 Lord Morris of Borth-y-Gest stated:

. . . the question of fundamental importance which arises is whether the court should entertain the proposition that an Act of Parliament can so be assailed in the courts that matters should proceed as though the Act or some part of it had never been passed. . . such doctrine would be dangerous and impermissible. It is the function of the courts to administer the laws which Parliament has enacted. In the processes of Parliament there will be much consideration whether a bill should or should not in one form or another become an enactment. When an enactment is passed there is finality, unless and until it is amended or repealed by Parliament. . . it must surely be for Parliament to lay down the procedures which are to be followed before a bill can become an Act. It must be for Parliament to decide whether its decreed procedures have in fact been followed. It must be for Parliament to lay down and to construe its standing orders and further to decide whether they have been obeyed: it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders. . .'[270]

233. This ancient right remains of fundamental constitutional importance. The exclusive right of the two Houses to make and to vary their own rules of procedure protects the legislative supremacy of Parliament and the exclusive right of the Commons to grant aids and supplies.

Right to institute inquiries and call for witnesses and papers

234. The right to institute inquiries and require the attendance of witnesses and production of documents (`to send for persons, papers, and records') is part of the law and custom of Parliament. At least since Elizabethan times committees have been examining matters where witnesses were required to appear.[271] Although committee inquiries concentrate on the scrutiny of government, and (in the case of the Commons particularly) on ensuring the proper and effective use of public money, investigations into other matters of public interest have always been an important element of select committee work. Evidence is usually taken in public and broadcast, and transcripts are published.

235. Committees usually work best when they seek evidence by co-operation with witnesses rather than confrontation. However, committees sometimes may need to use the powers given them by the House to require witnesses to attend and answer questions. In these circumstances it is important they should be seen to be fair in the treatment of those who take part in their proceedings. Attendance as a witness before a parliamentary committee can be a daunting experience, particularly for witnesses from outside government circles. Ministers and senior departmental officials are accustomed to committee proceedings, and are able to look after themselves, though even here committees should recognise the importance of fairness and restraint.

236. To other witnesses the procedure is unknown, the setting is imposing, and the environment can seem hostile. The ability to ask questions under parliamentary privilege, uninhibited by rules of evidence or other legal safeguards, carries with it special responsibilities. Special care needs to be exercised when committees question witnesses about conduct which may be the subject of criminal charges. In such cases witnesses should always have the right to legal representation, to know in advance any accusation they will be required to answer, and to see any evidence on which it is based.

237. We recommend that all those who participate in committee proceedings should have available to them, in advance, a clear statement of the powers of Parliament and their own rights in regard to them. Each House should prepare and issue to all potential witnesses a guide similar to that issued to all its witnesses by the New Zealand House of Representatives.[272] An important part of this guide will be a clear statement of the conduct which constitutes contempt of Parliament and, therefore, if the contempt were serious enough, would cause Parliament to invoke its penal powers. The guide will supersede the briefs currently produced by the Commons for witnesses attending departmental select committees.

238. There is a long-standing convention in Parliament that one House does not compel the attendance of a member of the other House before its committees.[273] The underlying rationale is the desire to avoid conflict between the two Houses. It means that a member of one House, in respect of what he says or does as a member of that House, is not accountable to the other House. The convention is all-embracing and can give rise to anomalies today. For instance, it means that a former minister can be required to attend a Commons committee if he remains a member of the House of Commons or if he leaves Parliament, but not if he is elevated to the House of Lords.

239. It is important that ministers and former ministers elevated to the House of Lords should attend select committees in the other House to answer questions relating to their periods in office. The work of these committees is an essential element of Parliament's scrutiny of the executive. We are not aware of any specific instance where the work of a select committee has been substantially impeded by this rule. Even so, we consider it is preferable that this convention, affecting as it does the relationship between the two Houses, should be examined afresh in the light of today's conditions (when former ministers frequently move from the Commons to the Lords). It would be much better to avoid the possibility of confrontation on this issue. We recommend that the procedure committees of the two Houses should investigate and report on the desirability of the convention in modern circumstances.[274]

Right of each House to administer its internal affairs within its precincts

240. Each House has the right to administer its internal affairs within the parliamentary precincts. The courts have accepted this principle in full measure. In Bradlaugh v Gosset[275] the court declined to intervene when the House of Commons refused to allow a member who was an avowed atheist to take the oath even though he was required to do so by statute.

241. In one important respect this heading of privilege is unsatisfactory. `Internal affairs' and equivalent phrases are loose and potentially extremely wide in their scope. On one interpretation they embrace, at one edge of the spectrum, the arrangement of parliamentary business and also, at the other extreme, the provision of basic supplies and services such as stationery and cleaning. This latter extreme would be going too far if it were to mean, for example, that a dispute over the supply of photocopy paper or dismissal of a cleaner could not be decided by a court or industrial tribunal in the ordinary way. Here, as elsewhere, the purpose of parliamentary privilege is to ensure that Parliament can discharge its functions as a legislative and deliberative assembly without let or hindrance. This heading of privilege best serves Parliament if not carried to extreme lengths.

Precincts of Parliament not a haven from the law

242. One point is clear: the right is intended to protect each House in respect of the conduct of its internal affairs. This privilege does not embrace and protect activities of individuals, whether members or non-members, simply because they take place within the precincts of Parliament. Thus, unless protected by article 9 as part of proceedings in Parliament, the speech and conduct of members enjoy no special privilege under this heading. Article 9 aside, members can be prosecuted for criminal conduct, such as a breach of the official secrets legislation[276], or pursued in the civil courts for slander or other wrongs, even when the conduct complained of occurred within the Palace of Westminster. If a member is charged with a criminal offence, no waiver of immunity is required. If one of their members is imprisoned and cannot attend the House, the two Houses expect only to be informed of the fact. The same principle applies to the premises in which Parliament meets. A criminal offence committed in the precincts is triable in the courts. A member may be arrested within the precincts.[277]

243. This point was illustrated in 1986 in the Zircon case. The BBC had prepared, but decided not to broadcast, a television film called The Secret Story. The film included material on a secret defence project, concerned with a means of collecting intelligence, code-named Zircon. Some members of the House of Commons arranged to show the film within the precincts of the House. The Speaker, Mr Bernard Weatherill, was reluctant to intervene.[278] So the Attorney General applied to the court, on the ground of national security, for an order banning the showing of the film within the precincts of the House of Commons until the House had an opportunity to decide whether the showing of the film should be allowed. In the exercise of his discretion, the judge refused to grant an injunction, taking the view that the matter should be under the control of the House of Commons authorities even in advance of any motion in the House. The Speaker then made a banning order.

244. The House of Commons privileges committee considered the proposed showing of the film, under arrangements made privately by a member, would not have been protected by privilege as a proceeding in Parliament. The committee observed:

`it might be thought . . . that the fact that something is done within the precincts of the House might afford that action some kind of immunity or protection of privilege. This would mean that the precincts of the House would somehow be treated as a sanctuary from the operation of the law, irrespective of whether the activities concerned were a proceeding in Parliament. . . . your Committee can find no precedent for the House affording its Members any privileges on the sole ground that their activities were within the precincts. The fact that the Zircon film was to be shown in the precincts therefore gave those responsible no privileged protection'.[279]

245. The privileges committee considered, moreover, that in the absence of the protection afforded to proceedings in Parliament by article 9, the courts had jurisdiction to grant an injunction:

`It must be recognised, however, that the courts do have jurisdiction in relation to matters which are not covered by privilege. . . . the precincts of the House should not be treated as a sanctuary from the operation of the law. An injunction could, for example, be granted which would prevent those bound by the injunction (whether members or not) from disclosing material within the precincts of the House (except as part of a proceeding of the House). Disclosure in these circumstances would be in contempt of court.'[280]

The committee added that the courts might, in the exercise of their discretion, decline to grant an injunction, for example, if the House could regulate the matter itself.

The need for a dividing line

246. Putting aside the activities of individuals, there is a need to distinguish between activities of the House which call for protection under this head of privilege and those which do not. The Palace of Westminster is a large building; it requires considerable maintenance; it provides an extensive range of services for members; it employs and caters for a large number of staff and visitors. These services require staff and supplies and contractors. For the most part, and rightly so, these services are not treated as protected by privilege. It is difficult to see any good reason why claims for breach of contract relating to catering or building services, for example, should be excluded from the jurisdiction of the courts, or why a person who sustains personal injury within the precincts of Parliament should not be able to mount a claim for damages for negligence.[281] This has been formally recognised in the Parliamentary Corporate Bodies Act 1992. Under this Act each House established a corporate officer who can sign contracts on behalf of the House and sue or be sued.

247. The dividing line between privileged and non-privileged activities of each House is not easy to define. Perhaps the nearest approach to a definition is that the areas in which the courts ought not to intervene extend beyond proceedings in Parliament, but the privileged areas must be so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament's sovereignty as a legislative and deliberative assembly. One example is the Speaker's decision on which facilities within the precincts of the House should be available to members who refuse to take the oath or affirmation of allegiance.[282] Another example might be steps taken by the library of either House to keep members informed upon matters of significant political interest. Such steps, if authorised by the presiding officer of the House, would properly be within the scope of the principle and not amenable to orders of the court.[283]

248. It follows that management functions relating to the provision of services in either House are only exceptionally subject to privilege. In particular, the activities of the House of Commons Commission, a statutory body appointed under the House of Commons Administration Act 1978[284], are not generally subject to privilege, nor are the management and administration of the House departments. The boundary is not tidy. Occasionally management in both Houses may deal with matters directly related to proceedings which come within the scope of article 9. For example, the members' pension fund of the House of Commons is regulated partly by resolutions of the House.[285] So too are members' salaries[286], and the appointment of additional members of the House of Commons Commission[287] under section 1(2)(d) of the House of Commons Administration Act. These resolutions and orders are proceedings in Parliament, but their implementation is not.

Precincts of Parliament: a statute-free zone?

249. Unfortunately, the need to draw a dividing line has been obscured by the decision in the A P Herbert case in 1934. The sale of alcohol without a justices' licence was a criminal offence. Motivated no doubt by a desire to be circumspect and not trespass upon matters properly belonging to Parliament, Lord Chief Justice Hewart decided the courts would not hear a complaint regarding sales of alcohol in the precincts of Parliament without the necessary licence because the House of Commons was acting collectively in a manner which fell within the area of the internal affairs of the House.[288]

250. This decision, which has not escaped criticism, has spawned difficulties and anomalies, mainly but not solely in the field of employment. Statutes treated as not binding upon either House on the basis of this decision have included the Prices and Incomes Act 1966, the Industrial Relations Act 1971, the Health and Safety at Work etc. Act 1974, the Food Safety Act 1990, and the Data Protection Acts 1984 and 1998.[289] Many of these Acts have been applied voluntarily, but the criticism remains that the law-makers are exempt from the laws they make for everyone else.[290] This criticism is forceful, because these Acts cover activities far removed from core activities of Parliament. Parliamentary privilege exists to enable members to discharge their duties to the public. It cannot be right that this privilege should have the effect that Parliament itself, within the place it meets, is not required to comply with its own laws on matters such as health and safety, employment, or the sale of alcohol.

251. Whether the decision in the A P Herbert case was in accordance with earlier cases is not a matter we need pursue. The decision has never been considered in a higher court. For the purposes of this review, it is the practical consequences that matter. We consider the practical consequences of this decision are not satisfactory. We recommend the enactment of a provision to the effect that the privilege of each House to administer its own internal affairs in its precincts applies only to activities directly and closely related to proceedings in Parliament. We recommend, further, there should be legislation clarifying that, as to activities which are not so related, there should be a principle of statutory interpretation that in the absence of a contrary expression of intention Acts of Parliament bind both Houses. The legislation could usefully include some examples of internal affairs on each side of the line. We envisage this provision would operate for the future, because a sweeping retrospective change applying to all existing legislation would have unforeseeable practical repercussions. For the future, whenever Parliament is to be exempt, a reasoned case should be made out and debated as the legislation proceeds through Parliament.

Disclosure and use of select committee papers

252. A troublesome complication arises from the fact that some administrative functions and advice on a range of administrative matters are provided by select committees, for example, the offices committee in the House of Lords and the domestic committees in the House of Commons. Because these are select committees, what is said and done at their meetings ranks as proceedings in Parliament. Accordingly it is immune from scrutiny by the courts. Yet, of its nature, the work of these committees is seldom the kind of business that merits legal immunity. The business they transact is different in character from the work of other select committees which typically consider government policy and expenditure, examine legislation or investigate matters of public concern.

253. The initial complication is that parties to non-criminal proceedings in the courts are usually required to produce all documents in their possession which are material to the dispute. It is in the interests of each House that when the corporate officers or others make contracts on their behalf, the House should not be hampered in the conduct of subsequent court proceedings by being unable to comply with these court procedures.

254. Sir Donald Limon, then Clerk of the House of Commons, drew attention to a court action brought against the House of Commons by a disappointed contractor for work on Portcullis House, the new parliamentary building opposite Big Ben.[291] Select committee papers relevant to the contract had been included (with the permission of the House of Commons, secured by motion) in the documents exchanged between the parties. This met the obligation to disclose, but left unresolved the crucial question of how the disclosed material could, if relevant, be used in the course of the trial. Article 9 precluded such use. Unlike its non-statutory privileges, the House of Commons had no power to waive this statutory provision.

255. This is not satisfactory. The House might lose an action, or be forced to discontinue, where committee documents were relevant but could not be fully examined because of article 9. This problem is not confined to contractual disputes or employment disputes. A similar difficulty might arise in the case of any other civil action (for example, a claim for damages for personal injuries) where the corporate officer of the House was sued or wished to sue, although in such cases select committee proceedings are less likely to be involved than in decisions on a major building contract.

256. There seem to be three possible courses of action. One is to enact a statutory exception to article 9. The drawback with this lies in the difficulty of formulating an adequate definition. A provision that article 9 should not apply to any matter for which the corporate officers are responsible[292], or any matter relating to the employment of persons by either House, would be a useful step forward, but this would not suffice. The exception would also need to cover some non-contractual claims, such as claims in respect of personal injuries suffered in the precincts of Parliament. No doubt other types of claim may arise to which the exemption should apply. This difficulty might be met by the statute listing various types of claim and empowering each House by resolution to add to the list.

257. A second course, and possibly the simplest solution which, furthermore, would not require legislation, is a course the two Houses might find most difficult to accept: select committees should in all cases cease to deal with administrative matters. Other, less formal, committees might be appointed to give advice.

258. A third possible course is to make use of the statutory power of waiver we have already suggested should be given to each House.[293] We have emphasised this power would not be available where waiver would expose the speaker of the words or the doer of the acts to any legal liability. This limitation would still exist in this context. This limitation would not exclude the use of waiver in the types of case now under consideration, because any liability would be that of the House or a corporate officer acting on its behalf. In practice, the House could not be expected to consider each candidate for a waiver as it arises. Accordingly, it would be convenient for the legislation to provide that the power of waiver could be exercised by the presiding officer or other authorised officer, in accordance with general or specific authority given by the House from time to time. It would then be a matter for each House to prescribe, and keep under review, the types of case in which the authorised officer might grant the waiver.

259. The Joint Committee prefers the third of these possibilities. As matters stand at present, we consider this is the only practical solution. It offers a higher degree of flexibility than the first option. The second option would require radical alteration to the way administrative and domestic matters have traditionally been handled by committees of members. We recommend the power of waiver of article 9 mentioned earlier in this report[294] should be exercisable by an officer of the House on its behalf in accordance with authority given by the House from time to time. This recommendation does not preclude either House from revising its arrangements for transacting domestic and house-keeping matters.

Definition of precincts of Parliament

260. The large measure of control exercised by the two Houses over the premises where they meet has symbolic as well as practical importance. The Palace of Westminster is a royal palace, and used to be controlled on the Sovereign's behalf by the Lord Great Chamberlain. Control of the use of the precincts of the two Houses is now vested in their presiding officers on behalf of the House. [295] Rules made by the two Houses determine who may enter the precincts and the conditions on which the premises may be used. The police on duty in the two Houses are under the direction of the Serjeants-at-Arms.[296] Both Serjeants have power given them by their respective Houses to deal with misconduct by non-members.

261. The position of the two Houses in this regard, and the powers of their presiding officers, are not set out in any statute. Nor are `precincts' statutorily defined. The extent of the precincts has never been a matter of dispute in court. The two Houses assume that precincts include, and that the courts would accept they include, in addition to the Palace itself and its immediately surrounding areas such as Old Palace Yard and New Palace Yard, various buildings adjacent to the Palace occupied for parliamentary purposes.[297] Two former leaders of the House of Commons, Lord Newton of Braintree and Mr John McGregor MP, said in evidence that the absence of a statutory definition of precincts had not caused any practical difficulty.[298] We see no need for any change in the present position.

268 They may consider, of course, whether the application of the Act does or does not conflict directly in a particular case with other statutes or with Community law, e.g. R v Secretary of State for Transport ex parte Factortame (No. 2) [1991] 1 AC 603. Back

269 e.g. the provision in the Provisional Collection of Taxes Act 1968 (as amended) for giving immediate provisional validity to those proposals contained in the Budget that are to come into force before specific statutory authority can be obtained: see Erskine May, 22nd ed (1997), pp 789-790. Back

270 Pickin v British Railways Board [1974] AC 765 at 788-790. Back

271 e.g. D'Ewes Journal p 396. There is much fragmentary evidence on early committees, but little detail on how they worked. E.g. on 10 February 1629 a committee was appointed to investigate a member being served with a subpoena while sitting on a committee in the Exchequer chamber, and other matters, and given power `to send for any persons, records or other things for their information' and as an afterthought the House ordered that all committees `having power from the House, to send for persons and witnesses to have like power from the House to require any to attend the House at such time as they shall think fitting': (CJ 1 (1803 printing) 928, (1629)). The right to compel the attendance of witnesses was recognised by the court in Howard v Gosset (1845) 10 QB 359, 395. See also the decision of the High Court of Australia in Egan v Willis [1998] HCA 71 on the right of the House to call upon a minister to produce official documents and suspend him as a measure of coercion. Back

272 The main sections of the New Zealand Guide to Natural Justice before Select Committees appear in vol 3 to this report, p 182. See too the standing orders of the New Zealand House of Representatives. For a commentary on the interpretation of those standing orders, see the report of the standing orders committee on the review of standing orders (1995, 1.18A) pp 78-84 and appendix F (report to the standing orders committee by Professor Philip Joseph). See also vol 3, pp 102-4 (Victoria). Back

273 Erskine May, 22nd ed (1997), p 648. Formerly the express permission of the House was required but Standing Orders now provide that a member may always attend in the other House if he sees fit to do so. Back

274 If the two procedure committees decided that the convention was no longer relevant or hampered the work of parliamentary scrutiny of the executive, effect could be given to the decision by way of amendments to the present standing orders: Commons Standing Order No. 138, Lords Standing Orders 21 and 22. Back

275 (1883) 12 QBD 271; Erskine May, 22nd ed (1997), p 89. Back

276 e.g. R v Owen: TLR 7 May 1970, where a member was charged with offences under the Official Secrets Acts, tried and acquitted. For text of the petition, papers and evidence, see CJ (1969-70) 153. Back

277 In 1815 Lord Cochrane, a member of the House of Commons, having been indicted and convicted of a criminal offence, was committed by the court of King's Bench to the King's Bench prison. He evaded committal and was arrested by the marshal while he was sitting on the privy councillor's bench in the chamber of the House of Commons on a sitting day but before prayers had been read. The committee of privileges subsequently reported that the privileges of Parliament did not appear to have been violated: HC sessional papers 1814-15 (239); 30 H D 1 s 309, 336; Lord Colchester's Diary, ii 534-536. Back

278 Q 544. Back

279 First Report from the Committee of Privileges, HC (1986-87) 365, paragraph 17. Back

280 ibid, paragraph 30. Back

281 In Australia it has been held that an injury to a waitress in a parliamentary restaurant was not part of the internal business of Parliament and was not protected by privilege: Bear v State of South Australia (1981) 48(2) SAIR 604. Back

282 R v The Speaker, ex parte McGuiness (Northern Ireland, 3 October 1997, Kerr J). Mr McGuiness had been elected a member of the House but declined to fulfil his statutory duty to take the oath. He sought to overturn a decision by the Speaker not to extend to him certain facilities in the precincts. Mr Justice Kerr decided that `whether it qualifies as a proceeding in Parliament or not, the Speaker's action lies squarely within the realm of internal arrangements of the House of Commons and is not amenable to judicial review. Control of its internal arrangements has long been recognised as falling uniquely within Parliament's domain and superintendence from which the court's intervention is excluded'. Referring to the judgment of Stephen J in Bradlaugh v Gosset (1884, quoted above) Kerr J added:`. . . thus the immunity of the action taken by the House of Commons did not arise because it has passed a resolution but because the House was entitled to the unfettered control of its own internal proceedings . . . the Speaker, acting on behalf of the House, is entitled to restrict Members from using certain facilities which would normally be available to them as Members of Parliament.' Back

283 See vol 3, p 19, where the Commons librarian gave the example of the library making the text of the book Spycatcher available to members while it was the subject of an injunction. Another example would be the Speaker's decision to exclude a research assistant because of secret information of a terrorist connection. Back

284 Members comprise the Speaker, the Leader of the House, a member of the House nominated by the Leader of the Opposition, and three other members of the House of Commons appointed by the House. Back

285 e.g. CJ (1994-95) 458. Back

286 e.g. CJ (1994-95) 478. Back

287 CJ (1997-98) 254. Back

288 [1935] 1 KB 594. An account of the background of this case appears in Sir Alan Herbert's Independent Member (1950). Back

289 See Mr Geoffrey Lock's evidence, vol 3, pp 35-36. See also Lock, `Statute law and case law applicable to Parliament' in The Law and Parliament (1998, ed D Oliver and G Drewry for the Study of Parliament Group) which is the source of the phrase `statute-free zone'. Back

290 ibid. See also QQ 251, 505. Back

291 Harmon CFEM Facades (UK) Limited v Corporate Officer of the House of Commons (1997). Back

292 The Clerk of the Parliaments is the corporate officer for the House of Lords; the Clerk of the House of Commons is the corporate officer for that House. The corporate officers' functions include: acquiring, holding, managing and disposing of land and other property on behalf of the House; entering into contracts for any purpose of the House; and doing any other thing which he can do by virtue of his office as Clerk: see Parliamentary Corporate Bodies Act 1992 (c 27) See also, vol 3, p 7, memorandum by the Attorney General. Back

293 Paragraphs 72-74 and 83 above. Back

294 Paragraphs 73-74 and 83 above. Back

295 There are exceptions. Control of Westminster Hall and the Crypt Chapel is vested jointly in the Lord Great Chamberlain, as representing the Sovereign, and in the Speaker of each House on behalf of the two Houses. The Lord Great Chamberlain also retains control of Her Majesty's Robing Room and the Royal Gallery, both of which are in the precincts of the House of Lords: Erskine May, 22nd ed (1997), p 176. Back

296 In the House of Lords the Gentleman Usher of the Black Rod also holds the office of Serjeant-at-Arms. Back

297 Apart from the Palace, the precincts include new buildings in Parliament Street, Cannon Row, and Bridge Street and, shortly to be completed, Portcullis House on the corner of Bridge Street and the Embankment. All these buildings are freehold and are permanent premises built to meet the needs of Parliament. In addition to these freehold properties, Parliament leases properties in Millbank, Deans Yard, and Abbey Gardens, which, though not held permanently, are nevertheless used exclusively for parliamentary purposes and regarded as part of the precincts. Back

Chapter 2

CHAPTER 2: FREEDOM OF SPEECH AND ARTICLE 9 OF THE BILL OF RIGHTS

Article 9 of the Bill of Rights 1689

36. A primary function of Parliament is to debate and pass resolutions freely on subjects of its own choosing. This is a cornerstone of parliamentary democracy. The performance of this function is secured by the members of each House having the right to say what they will (freedom of speech) and discuss what they will (freedom of debate). These freedoms, the single most important parliamentary privilege, are enshrined in article 9 of the Bill of Rights 1689. Using modern spelling, article 9 provided:

`That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.'

In this article the meaning of `impeach' is not clear: possible meanings include hinder, challenge and censure.

37. Over the years this article has been the subject of many legal decisions.[94] Even so, uncertainty remains on two basic points: what is covered by `proceedings in Parliament', and what is meant by `impeached or questioned in any . . . place out of Parliament'. A definitive history of the origins of article 9 has yet to be written[95], but one thing is reasonably clear: the principal purpose was to affirm the House's right to initiate business of its own and to protect members from being brought before the courts by the Crown and accused of seditious libel. Article 9 also reasserted the long established claim not to be answerable before any court for words spoken in Parliament.[96] The modern interpretation is now well established: that article 9 and the constitutional principle it encapsulates protect members of both Houses from being subjected to any penalty, civil or criminal, in any court or tribunal for what they have said in the course of proceedings in Parliament.[97]

Legal immunity

38. This immunity is wide. Statements made in Parliament may not even be used to support a cause of action arising out of Parliament, as where a plaintiff suing a member for an alleged libel on television was not permitted to rely on statements made by the member in the House of Commons as proof of malice.[98] The immunity is also absolute: it is not excluded by the presence of malice or fraudulent purpose. Article 9 protects the member who knows what he is saying is untrue as much as the member who acts honestly and responsibly. Nor is the protection confined to members. Article 9 applies to officers of Parliament and non-members who participate in proceedings in Parliament, such as witnesses giving evidence to a committee of one of the Houses.[99] In more precise legal language, it protects a person from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.[100]

39. A comparable principle exists in court proceedings. Statements made by a judge or advocate or witness in the course of court proceedings enjoy absolute privilege at common law against claims for defamation. The rationale in the two cases is the same. The public interest in the freedom of speech in the proceedings, whether parliamentary or judicial, is of a high order. It is not to be imperilled by the prospect of subsequent inquiry into the state of mind of those who participate in the proceedings even though the price is that a person may be defamed unjustly and left without a remedy.

40. It follows we do not agree with those who have suggested that members of Parliament do not need any greater protection against civil actions than the qualified privilege enjoyed by members of elected bodies in local government.[101] Unlike members of Parliament, local councillors are liable in defamation if they speak maliciously. We consider it a matter of the utmost importance that there should be a national public forum where all manner of persons, irrespective of their power or wealth, can be criticised. Members should not be exposed to the risk of being brought before the courts to defend what they said in Parliament. Abuse of parliamentary freedom of speech is a matter for internal self-regulation by Parliament, not a matter for investigation and regulation by the courts. The legal immunity principle is as important today as ever. The courts have a duty not to erode this essential constitutional principle.

41. Thus far there is no difficulty or uncertainty. Nor is there any difficulty in the official report of parliamentary debates (Hansard)[102] being used in court to establish what was said and done in Parliament as a matter of history: for example, that a particular member made a speech as reported on a particular day. But this leaves open the question whether the article 9 prohibition on the `questioning' of parliamentary proceedings in court does, or should, extend more widely than to afford legal immunity. Should article 9 preclude a court from relying on a statement made in Parliament even when this would not involve impugning the motives or reliability of the member who made the statement and would not result in the member being exposed to any civil or criminal liability? Another issue concerns the interaction of article 9 and court proceedings for the judicial review of ministerial decisions. These issues, touching and concerning parliamentary freedom of speech, are of basic importance. They are also complex, and examining them calls for close analysis.

`Ought not to be questioned': recent developments

42. As a prelude, a practical point should be noted. The use of reports of debates in court proceedings was facilitated by the removal of a formal obstacle comparatively recently. From at least 1818 the practice in the House of Commons was that its debates and proceedings could not be referred to in court proceedings without the leave of the House.[103] Petitions for leave were rarely refused, and in order to save parliamentary time the House decided in 1981 to discontinue the need for such leave.[104] When doing so the House expressly re-affirmed the status of proceedings in Parliament confirmed by article 9 of the Bill of Rights. The practice of requiring leave to refer to proceedings was never followed in the House of Lords. One effect of the 1981 change has been that the use of Hansard in court proceedings has increased. The oft quoted statement of Blackstone in his celebrated eighteenth century Commentaries[105] that `whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere' is now accepted as being too wide and sweeping.

Pepper v Hart

43. One of the uses the courts now make of parliamentary proceedings is as an aid when interpreting Acts of Parliament. This follows from the decision in Pepper v Hart.[106] The case concerned the proper meaning of a taxation provision. Mr Hart was a schoolmaster at a fee-paying school which operated a concessionary fee scheme enabling members of staff to have their sons educated at the school at reduced fees if surplus places were available. Tax was payable by Mr Hart on `the cash equivalent of the benefit', but the statutory definition of that expression was ambiguous. During the committee stage of the Finance Bill in the House of Commons the financial secretary to the Treasury indicated that the basis of taxation for certain benefits in kind would remain the cost to the employer of providing the service.[107] When pressed he interpreted this as being, in effect, the extra cost caused by the provision of the benefit in question. In Mr Hart's case the actual additional cost to the employer was negligible, because boys educated through the scheme were filling places which otherwise would have been empty. However, relying on the wording in the Act, the Inland Revenue had taxed a proportion of the total cost of providing the services.

44. The House of Lords in its judicial capacity decided that clear statements made in Parliament concerning the purpose of legislation in course of enactment may be used by the court as a guide to the interpretation of ambiguous statutory provisions. The Lords held such use of statements did not infringe article 9 because it did not amount to questioning a proceeding in Parliament. Far from questioning the independence of Parliament and its debates, the courts would be giving effect to what was said and done there. Lord Browne-Wilkinson said:[108]

`I trust when the House of Commons comes to consider the decision in this case, it will be appreciated that there is no desire to impeach its privileges in any way. Your Lordships are motivated by a desire to carry out the intentions of Parliament in enacting legislation and have no intention or desire to question the processes by which such legislation was enacted or of criticising anything said by anyone in Parliament in the course of enacting it. The purpose is to give effect to, not thwart, the intentions of Parliament.'

A similar principle had already been adopted in Australia and New Zealand[109] before the English decision in Pepper v Hart. It had also been adopted earlier in England, in Pickstone v Freemans[110], in the context of subordinate legislation, but in that case the admissibility of the parliamentary material seems not to have been questioned.

45. Parliament must be vigilant in protecting its freedom of speech. Any departure by the courts from hitherto accepted practice must be scrutinised thoroughly to see whether, as a matter of principle and practice, it is justifiable. Applying that test the Joint Committee is of the view that the development outlined above in Pepper v Hart is unobjectionable. This use of parliamentary proceedings is benign. The Joint Committee recommends that Parliament should not disturb the decision in Pepper v Hart. However, it is important that this specific court decision should not lead to any general weakening of the prohibition contained in article 9.

Judicial review of ministerial decisions

46. A second and perhaps more important question concerns the use now made of parliamentary proceedings in court proceedings brought for the judicial review of ministerial decisions. Judicial review is the court procedure whereby the High Court reviews the lawfulness of administrative decisions, including ministers' decisions, as well as decisions of lower courts and tribunals. Ministers' powers are limited, and in judicial review proceedings relating to a ministerial decision the court is asked to decide whether the minister acted outside his powers. He might have done so, for instance, by failing to take into account some important matter he should have had in mind or by misdirecting himself on the purpose for which a particular statutory power could be used. The court does not substitute its own discretion for that of the minister. If the minister acted within his powers his decision will stand. If he acted outside his powers his decision was unlawful and the court may quash it. It will then be for the minister to consider the matter afresh.

47. In the last 30 years the courts have developed enormously the ambit of judicial review. Also, since 1979, Parliament has increased its scrutiny of decisions of ministers and government departments through the operation of select departmental and scrutiny committees. Both developments derived from the scope and complexity of modern government and the extent to which its policies, decisions and administrative actions impinge upon the citizen. Parliament makes the law and, politically, calls the government to account for its actions. But the government is also subject to the law and is therefore answerable to the courts if it exceeds or misapplies its powers. If Parliament and the courts respect and support each other's essential functions, they will provide a formidable safeguard against the abuse of power by the executive. Professor Anthony Bradley, whose evidence mainly supported the traditional privileges and powers of Parliament, was here a little reproving:

`The existence of an effective system of administrative law does not conflict with the role of Parliament . . . Because a central feature of the British system of government is the responsibility of ministers to Parliament, the same executive decision may give rise to review on legal grounds by the courts, to debate and questioning on political grounds by the House and to detailed criticism and scrutiny by parliamentary committees. Parliamentarians who are sensitive to the public law role of the courts may find it difficult to accept that judicial review and ministerial responsibility serve complementary purposes and are not mutually exclusive, and that a controversial political decision may give rise both to parliamentary debate and judicial review'.[111]

48. Article 9 becomes germane when judicial review proceedings relate to a ministerial decision announced, or subsequently explained, in the House. Typically, in the court proceedings the applicant quotes an extract from the official report and then sets out his grounds for challenging the lawfulness of the decision in the light of the reasons given by the minister.

49. Use of Hansard in this way has now occurred sufficiently often for the courts to regard it as established practice. Some examples will suffice as illustrations. In several cases[112] challenges were made to the lawfulness of successive policy statements, announced in Parliament, regarding changes in the system for the parole of prisoners. In each case the court proceedings involved scrutinising the ministerial decisions and the explanations given by the minister in Parliament. In Brind (broadcasting restrictions on terrorists)[113] a ministerial statement in Parliament was used as evidence that the minister had exercised his power properly. In the Pergau Dam case[114] evidence given by the minister and an official to committees of the House of Commons was used in support of a successful claim that the decision to grant aid for the construction of the Pergau Dam in Malaysia did not accord with the enabling Act. In a criminal injuries compensation case, the Home Secretary announced in Parliament his decision not to bring into force the statutory compensation scheme but instead to introduce a tariff-based scheme under prerogative powers.[115] In none of these cases does any argument seem to have been advanced, by the government or anyone else, about the admissibility in evidence or the use in court of the statements made in Parliament. Indeed, the practice in court is for both the applicants and the government to use the official reports of both Houses to indicate what is the government's policy in a particular area.[116]

50. We believe Parliament should welcome this recent development. The development represents a further respect in which acts of the executive are subject to a proper degree of control. It does not replace or lessen in any way ministerial accountability to Parliament. It may reinforce it: by their nature judicial review proceedings are seldom, if ever, subject to reporting restrictions and their outcome may be used to pursue the political debate. Both parliamentary scrutiny and judicial review have important roles, separate and distinct, in a modern democratic society. Parliament must retain the right to legislate and take political decisions, but only the courts can set aside an unlawful ministerial decision.

51. The contrary view would have bizarre consequences. This may be why objection has never been taken in court to the admissibility of this evidence. Challenges to the legality of executive decisions could be hampered by ring-fencing what ministers said in Parliament and excluding such statements from the purview of the courts.[117] Ministerial decisions announced in Parliament would be less readily open to examination than other ministerial decisions. That would be an ironic consequence of article 9. Intended to protect the integrity of the legislature from the executive and the courts, article 9 would become a source of protection for the executive from the courts. We do not believe Parliament would wish this to be so. Rather, when challenging a minister's decision an applicant for judicial review should be as free to criticise the minister's reasons expressed in Parliament as those stated elsewhere. An applicant must be at liberty to use a statement made by a minister in Parliament as evidence that the minister misdirected himself or acted for an unauthorised purpose just as much as he can rely on the contents of a departmental letter.

52. A claim that a minister acted in bad faith would be rare, but the underlying principle should be the same even in such an exceptional case. The applicant should be entitled to point to ministerial statements and claim that the minister misled Parliament, even deliberately, if there are good grounds for believing this may be so and this is relevant to the issues arising in the proceedings. It is difficult to see how it could make sense for the courts to be permitted to look at ministerial statements made in Parliament and infer that the minister inadvertently misdirected himself and on that ground set aside his decision, but not be allowed to adjudicate upon a claim that the minister had erred more grievously by knowingly misusing a power. Any question of a minister knowingly misleading the House would also be a serious contempt of Parliament, and would have grave parliamentary consequences.

53. A practical note should be added. Ministerial statements in Parliament take several forms. They include prepared statements, speeches during debates in the chamber or in committee, written and oral answers to questions, replies to adjournment debates and evidence to select committees. As a matter of principle it is not possible to draw a distinction between these different forms, and in practice the courts look at them all. Parliament would expect the courts to make appropriate allowances for extempore answers, and there is every indication they have done so and will continue to do so.[118]

54. A cautionary warning must also be added on a point of constitutional importance. Since a ministerial decision may be debated in Parliament and also subjected to judicial review proceedings in court, it is possible that parliamentary proceedings and court proceedings regarding the same decision may take place simultaneously. This occurred in 1993, on an occasion of political sensitivity. On 20 July 1993 the House of Lords gave the politically controversial European Communities (Amendment) Bill its third reading. Meanwhile on 16 July Lord Rees-Mogg had applied to the court for a declaration that the United Kingdom could not lawfully ratify the treaty on European Union signed at Maastricht in February 1992, and for an order to quash the decision of the Foreign Secretary to proceed to ratify the treaty.[119] This was seen in parts of the House of Commons as an attempt to influence a political debate by judicial means. The Speaker rightly expressed the view that the House was entitled to expect that when the case came on for hearing, the Bill of Rights would be fully respected by all those appearing before the court.[120] Clearly, there is scope here for abuse. The courts must be vigilant to ensure that judicial processes are not used for political ends in a manner which interferes with Parliament's conduct of its business.

55. The Joint Committee recommends that article 9 should not be interpreted as precluding the use of proceedings in Parliament in court for the purpose of judicial review of governmental decisions.

Other court proceedings and ministerial decisions

56. The appropriate method for challenging in court the lawfulness of a ministerial decision is usually by judicial review proceedings. Sometimes a ministerial decision may affect rights of an individual whose protection lies in a different form of court proceedings. An instance would be if a minister were to make a statement in Parliament about an official in his own department in terms that the official then wished to use in support of a claim for constructive dismissal.[121]

57. Similar considerations apply here to those discussed above regarding judicial review. The minister is accountable to Parliament for his decision. His statement is properly made in Parliament but it ought not, for that reason, to be excluded from the evidence the court can examine when the minister's decision is in issue in court proceedings. Unlike judicial review, these court proceedings will be concerned with the effect of a ministerial decision; for instance, whether the official was correctly dismissed. This difference should not lead to any difference in treatment so far as article 9 is concerned.

58. The Joint Committee does not know of any proceedings where this point has actually arisen in court. We are aware of one instance where an official wished to use such a statement in proceedings before an industrial tribunal, but decided not to go ahead.[122] We expect that if the point were to arise in the course of proceedings, the court or tribunal would be likely in practice to look at the extract from Hansard. The contrary view, cloaking an executive statement with parliamentary immunity, would be most unjust. We believe Parliament would benefit by expressly accepting the principle involved.

59. We recommend that the exception of judicial review proceedings from the scope of article 9 should apply also to other proceedings in which a government decision is material.

Issues arising from section 13 of the Defamation Act 1996

60. As already noted, Pepper v Hart should be regarded as a benign, non-critical use of parliamentary proceedings in court, and judicial review as an exceptional use of them because of the intrusion of the executive element. A further issue which arises is more general. It is whether article 9 should be interpreted today as going beyond conferring absolute immunity from legal liability. Should article 9 protect a speech made in Parliament from critical examination in court even though this would not expose the member to any legal liability?

61. The situation posed by this question may arise in either the criminal or civil field. An example in the field of criminal law would be the case of a member of Parliament who defames an individual in the course of a debate in one of the Houses. The individual, prevented by article 9 from suing for defamation, takes matters into his own hands and assaults the member.[123] He is then prosecuted. In his defence or by way of mitigation in the criminal proceedings, the assailant wishes to put forward the defamatory statement and assert the member acted maliciously. As the law stands this would be a breach of article 9. But the accused should surely be permitted to pursue this course, which might affect his sentence if nothing else. A fair criminal trial could not take place if he were refused the opportunity. The only other alternative would be to stop the case, on the basis that the accused would not be able to have a fair trial. This also would be an unfortunate course to take with a criminal charge, and not in the public interest.

62. There is a civil counterpart of the criminal example just given. It is the case of the member who sues a non-member for defamation. In his defence the non-member asserts he was justified in saying what he did, and wishes to rely on statements made by the member in parliamentary proceedings. This was the situation which arose in 1995 in a libel action brought by a member of Parliament, Mr Neil Hamilton, and a political lobbyist, Mr Ian Greer, against The Guardian newspaper over allegations that Mr Hamilton had made corrupt use of his right to ask questions of ministers and had received money via Mr Greer's company (`cash for questions'). In its defence the newspaper sought to justify what it had written by calling evidence about Mr Hamilton's conduct and motives in tabling parliamentary questions and early day motions. The judge found this was contrary to article 9. He stopped the proceedings on the ground that it would not be fair to allow the plaintiffs to sue for libel if the defendant newspaper was not permitted to justify what it had written.[124]

63. This had the effect of denying the plaintiffs a forum for establishing that The Guardian allegations were untrue and, if untrue, receiving financial recompense. In other words, unlike any other citizen, a member of either House could not sue to clear his name if he was alleged to have acted dishonestly in connection with his parliamentary duties.

64. This situation is not unique to this country. The problem arose in two cases in New Zealand and Australia in 1970 and 1990. There the actions were tried on their merits. In the 1970 case in New Zealand no question of privilege seems to have been raised.[125] In the 1990 case in Australia, the South Australian Supreme Court found a way around the difficulty by holding that privilege does not extend to prevent challenges to the truth or honesty of statements made in Parliament where the maker of the statement himself initiates the proceedings.[126]

65. In a later case in New Zealand in 1992, Prebble v Television New Zealand[127] , the issue of privilege was raised. On appeal the judicial committee of the Privy Council decided that article 9 and the wider principle of separation of powers preclude the court from examining the truth or propriety of statements made in Parliament even where this will not expose the statement maker to any criminal or civil penalty. The judicial committee disapproved of the course taken in the earlier Australian and New Zealand cases, and preferred the larger body of United Kingdom and Commonwealth precedents which took a more restrictive view. They held that the privilege protected by article 9 is the privilege of Parliament and the actions of an individual member cannot determine whether or not the privilege should apply. In his judgment Lord Browne-Wilkinson said section 16(3) of the Parliamentary Privileges Act 1987 (Australia) was a correct statement of the effect of article 9 of the Bill of Rights.

66. Section 16 of the Parliamentary Privileges Act 1987 (Australia) was enacted in response to a surge of judicial interventionism in New South Wales in the 1980s. In two criminal cases cross-examination of defendants was permitted on evidence they had given to Senate committees[128]. Not surprisingly, an interpretation of article 9 having this effect was rejected by the Australian Federal Parliament. Section 16(3) provides:

`In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of these proceedings in Parliament.'

67. Section 13 of the Defamation Act 1996 was intended to remedy the injustice perceived to exist in the Hamilton type of case.[129] The text of section 13 (set out in annex A) enables a person, who may be a member of either House or of neither House, to waive parliamentary privilege so far as he is concerned, for the purposes of defamation proceedings. The essential protection of members against legal liability for what they have said or done in Parliament remains and cannot be waived.

68. Unfortunately the cure that section 13 seeks to achieve has severe problems of its own and has attracted widespread criticism, not least from our witnesses.[130] A fundamental flaw is that it undermines the basis of privilege: freedom of speech is the privilege of the House as a whole and not of the individual member in his own right, although an individual member can assert and rely on it. Application of the new provision could also be impracticable in complicated cases; for example, where two members, or a member and a non-member, are closely involved in the same action and one waives privilege and the other does not. Section 13 is also anomalous: it is available only in defamation proceedings. No similar waiver is available for any criminal action, or any other form of civil action.

69. The Joint Committee considers these criticisms are unanswerable. The enactment of section 13, seeking to remedy a perceived injustice, has created indefensible anomalies of its own which should not be allowed to continue. The Joint Committee recommends that section 13 should be repealed.

70. Yet there is a problem here. In practice, neither House now treats the libel of one of its members as a contempt[131], nor is either House equipped to hear libel cases even if such a course were publicly acceptable. In the Hamilton type of case it is, on the one hand, unthinkable that if the media criticise those who have been elected to power, the media should not be free to establish the truth of their criticisms. As was pointed out by Lord Browne-Wilkinson in the Prebble decision, were this not so the results could be `chilling' to the proper monitoring of members' behaviour.[132] On the other hand, if the law is left as enunciated in Prebble, members criticised outside Parliament and accused of misconduct in the performance of their parliamentary duties can find themselves wholly unable to clear their names. This undesirable state of affairs could even, in turn, encourage irresponsible media comment. Commentators would rest secure in the knowledge they could not be called to account in court for allegations of parliamentary misconduct. The difficulty lies in resolving this conflict.

71. The law is, of course, frequently faced with the need to resolve conflicts where one consideration pulls one way and another consideration pulls in a different direction. Sometimes one interest has to be preferred to the other. This has happened in the situation now under discussion. The courts have been properly anxious to keep clear of interfering with Parliament in the conduct of its affairs. There could therefore be no question of the courts investigating the allegations of parliamentary misconduct. They have had to choose between two injustices: injustice to the plaintiff, by not letting him have the opportunity to clear his name, and injustice to the defendant, by not letting him raise a defence of justification when this would require investigation of parliamentary proceedings. The courts have decided the loss should be left to lie where it falls. If a libel action brought by a member cannot be properly tried out on its merits, then it must be stopped, even though this will leave the defamed member without a remedy.

72. We have considered whether there is a third alternative, which will enable justice to be done to both parties: to permit the courts to investigate the alleged misconduct. One way of achieving this in a principled fashion would be that, instead of a member having power to waive article 9, as is the position under section 13 of the Defamation Act 1996, the House itself should be empowered to waive the article 9 privilege in any case where no question arises of the member making the statement being at risk of incurring legal liability. The existence of such a power would enable Parliament to meet the perceived injustice in the Hamilton type of case and in its criminal counterpart. If a member, placed as was Mr Hamilton, started a defamation action, the defendant newspaper would be entitled to seek to prove the truth of its allegations. The member, in turn, would have an opportunity to vindicate himself. In this way justice would be done to both parties, but at the same time the vital constitutional principle of freedom of speech in Parliament would be preserved. When they speak in Parliament members would have, as now, complete confidence that no legal liability could attach to them in consequence.

73. A waiver would not be confined to members or others who consent to waiver of the privilege, nor would it be confined to persons who are themselves parties in the court proceedings, nor would it be limited to defamation proceedings. But we emphasise this power would be available only to the House as a whole and only when there is no question of the member or other person making the statement being exposed in consequence to a risk of legal liability.

74. The latter limitation is important. The Joint Committee was not attracted by the House having an unlimited power of waiver of the article 9 legal immunity. An unlimited power of waiver would mean that when a member speaks he could never be sure that afterwards he might not find himself exposed to legal challenge. That would be inhibiting, and would undermine the freedom that article 9 currently protects. But none of this would arise with a power circumscribed as suggested. Within such limitation the House would retain a discretion and could withhold waiver when waiver would lead to an unacceptable degree of intrusion or when for some other reason waiver was considered undesirable in a particular case. As a decision might not always be straightforward, both Houses would no doubt wish to refer any waiver application for consideration by an appropriate committee, which might also state terms on which any waiver should be given by the House.

75. We recognise that this proposal is subject to one of the disadvantages inherent in the existing section 13. The examination of parliamentary proceedings in court in a libel (or other) action might lead to conflicting decisions of Parliament and the courts about a member's conduct. Lord Simon of Glaisdale expressed the view that the `most serious of all' the objections to section 13 is the scope it creates for a collision between the judiciary and Parliament.[133] This concern was not widely expressed when section 13 was enacted, nor was it one of the criticisms of the section which featured prominently in the evidence we took. We doubt whether in practice there will often be a risk of conflict. In most cases reference to parliamentary proceedings is likely to be subsidiary to the issues before the court. Where there appears to be a serious risk of conflict, the committee considering an application for waiver will need to consider carefully whether waiver would be in the public interest.

76. A more forceful criticism at first sight, and one also levelled at section 13, is that the result would be asymmetrical. Members can rely on the article 9 privilege in respect of defamatory remarks made by them in the House, but they (or, as is now being considered, the House) can waive the privilege when it suits them. The Joint Committee considers the answer lies in appreciating that the proposed power of waiver will not create an imbalance. The basic `imbalance' between members and everyone else, the lack of symmetry, is created by article 9 itself. Members are shielded from legal liability for defamatory statements made in the course of parliamentary proceedings. This is an essential concomitant of parliamentary freedom of speech. What the power of waiver will do is enable the House, while still preserving legal immunity, to permit parliamentary proceedings to be examined in court when the House (not the member) considers that justice so requires and that the privilege can be waived without damaging the interests of the House as a whole.

77. In written evidence to the Joint Committee Dr Geoffrey Marshall expressed a preference for going further. Section 13 should be replaced by a general provision which permits the giving of evidence about parliamentary proceedings in all cases that do not involve the direct protective function of article 9.[134] If such a general provision were adopted, the legal immunity principle enshrined in article 9 would remain intact and inviolate, but article 9 would not afford protection beyond this. We believe this would be an undesirable step, a step too far. A provision of universal application limiting the article 9 protection to cases where there is a risk of legal liability would mean that members, although not facing legal liability, could find themselves called to account in court for what they said in Parliament and why they said it. We believe that, in general[135], this would not be desirable. Legal immunity may be the principal function of article 9 today, but it is not the only purpose. Although the phrase `impeached or questioned' perhaps supports the view that the article 9 prohibition is co-terminous with legal liability, a wider principle is involved here, namely, that members ought not to be called to account in court for their participation in parliamentary proceedings. This is, and should remain, the general rule. The existence of a (circumscribed) power of waiver by the House would not undermine this principle of non-accountability: the House would retain for itself, in each case, the right to decide whether to waive article 9.

78. What we propose will not work if a decision by the House on whether to exercise its power of waiver in a particular case is, or appears to be, influenced by partisan considerations. Consistency of treatment will be important, and the House will need to be seen to be equitable in granting waiver where the applicant is a non-member, such as a witness or a newspaper. The committee appointed to consider applications should include senior members of the House. Given that the committee for privileges in the House of Lords always contains four law lords, we think this will be an appropriate committee in that House. In the House of Commons the existing functions of the standards and privileges committee would not readily accommodate a new role of advice on waiver. We think that in the Commons the decision might best be made by the Speaker, assisted with advice from a small committee. That committee might comprise members such as the leader and the shadow leader of the House, with the Attorney General and one or more representatives of other parties, coupled with a power to co-opt additional members either generally or for a particular case. In order to emphasise that its proceedings are `proceedings in Parliament' and not subject to judicial review, the committee should be formally appointed by the House early in each Parliament.

79. We were not attracted by the suggestion that non-members should also serve on these committees.[136] The committees will be giving advice on how the Lords or Commons should exercise a power relating to one of their fundamental privileges. The committee will be at liberty to take evidence or seek views from others, but its membership would properly be confined to members of the House.

80. In order to promote consistency these committees will need to prescribe ground rules or guidelines, setting out their general approach. For instance, we envisage the general approach will be to waive privilege unless there is good reason for not doing so. The guidelines should give examples of grounds for refusal: for instance, where waiver would mean that the Speaker might find herself having to attend court and be cross-examined on discussions she had with a worried member; or the chairman of the committee of selection might be required to give evidence on discussions between himself and the whips about the membership of a committee; or members or officers of the House might find themselves compelled to give evidence of advice tendered to a member regarding the tabling of a question or an amendment to a bill. A waiver which involved this degree of intrusion into the affairs of the House would only be appropriate in exceptional circumstances.

81. The issue here is one of balancing the disadvantages and finding the least unattractive course. As well as defamation, our proposal would deal with the problem of adducing evidence relating to a proceeding in Parliament in any criminal or civil court. It would also go some way towards resolving the current problem, drawn to our attention by the Clerk of the House of Commons, of enabling a court to examine the proceedings of a committee when determining a contractual dispute involving the corporate officer of the House.[137] We recommend this proposal to each House.

82. If this course is rejected, the only alternative we can see is to return to the position as it was before the enactment of section 13 of the Defamation Act 1996 and, hence, to the injustices section 13 sought to remedy. We believe the effort is worth making. It would be a sorry reflection on Parliament if a way cannot be devised to exclude political, specifically party political, interests from decisions which need to be taken on their merits. We believe that, of the various alternatives, this is the best option, even though there are risks and difficulties.

The general principle

83. We have stated our view that in general members ought not to be accountable in court for what they say or do in the course of proceedings in Parliament.[138] We have proposed some special and limited exceptions: the House should have power to waive article 9, but only where this would not expose the speaker of the words or the doer of the acts to legal liability; and the courts should be able to examine proceedings in Parliament when interpreting an ambiguous statute or judicially reviewing a governmental decision or considering the legal consequences of a governmental decision.

84. At present the scope of `ought not to be questioned' in article 9 remains undefined and unclear. To leave this question unresolved has the disadvantage that the courts may find themselves drawn into having to decide the issue. Parliament may not agree with the courts' solution. This is more likely now than in the past. Mr McKay, then clerk assistant, voiced anxiety to us regarding uncertainties surrounding article 9:

`The nineteenth century cases are full of echoes of Blackstone and the `dignity of the House'. The House of Commons had an unchallenged place in the constitution. The courts were anxious to preserve that. You did not get litigants who picked over words. Nowadays that is the way litigants and the courts behave - quite properly. That is the change. That is the uncertainty. It is a modern uncertainty.'[139]

85. In the last 30 years the judicial tide in England has rolled forward to some extent on the parliamentary foreshore, although not so far as in Australia in the 1980s. The Joint Committee considers that the continuing lack of clarity on such a fundamental constitutional provision is undesirable. It is preferable for Parliament to declare now what is the scope of article 9, rather than risk having to change this constitutional provision in Parliament's favour after an unsatisfactory court decision. Subject to the limited and specific qualifications already made on particular points[140], and subject to one further point[141], the Joint Committee recommends that Parliament should confirm, as a general principle, the traditional view of article 9: that it is a blanket prohibition on the examination of parliamentary proceedings in court. The prohibition applies whether or not legal liability would arise.

86. Section 16(3) of the Parliamentary Privilege Act 1987 (Australia), the text of which is set out above[142], took this approach. No court or tribunal may receive evidence, or permit questions to be asked or submissions made, concerning proceedings in Parliament by way of, or for the purpose of, questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament or drawing an inference from anything forming part of those proceedings. The Joint Committee recommends the enactment of a statutory provision to this effect. In one respect the Australian statute may go too far. It is difficult to see how there could be any objection to the court taking account of something said or done in Parliament when there is no suggestion that the statement or action was inspired by improper motives or was untrue or misleading and there is no question of legal liability. We recommend that the prohibition be coupled with a proviso to the effect that the court may take such statements or conduct into account. These recommendations would not affect the continuing use of Hansard in court to establish what was said or done as a matter of history.

Recommendations on these matters

87. At the outset of this report we set out one test by which the value of any particular parliamentary privilege should be measured, namely, whether each particular right or immunity currently existing is necessary today, in its present form, for the effective functioning of Parliament. The recommendations we propose confirm the traditional view of the scope of article 9. This is justifiable today as much as formerly: those who participate in parliamentary proceedings should not in consequence find themselves having to account for their conduct in any form of court proceedings. We propose some limited exceptions, none of which compromise or impair the legal immunity of those who participate in parliamentary proceedings. The only instance where the legal immunity principle is breached is ministerial liability for government decisions.

88. The Joint Committee accordingly recommends a statutory enactment to the effect that no court or tribunal may receive evidence, or permit questions to be asked or submissions made, concerning proceedings in Parliament by way of, or for the purpose of, questioning or relying on the truth, motive, intention or good faith of anything forming part of proceedings in Parliament or drawing any inference from anything forming part of those proceedings.

89. We recommend that the mischief sought to be remedied by section 13 of the Defamation Act 1996 should be cured by a different means. Section 13 should be replaced by a short statutory provision empowering each House to waive article 9 for the purpose of any court proceedings, whether relating to defamation or to any other matter, where the words spoken or the acts done in proceedings in Parliament would not expose the speaker of the words or the doer of the acts to any legal liability. Each House will need to consider appropriate machinery once the section has been repealed.

90. The Joint Committee considers it would be sensible to recognise the Pepper v Hart principle and the use of parliamentary proceedings in court actions concerned with the judicial review of governmental decisions or the consequences of governmental decisions. We recommend the enactment of a short statutory provision to the effect that nothing in article 9 shall prevent proceedings in Parliament being examined in any court proceedings so far as they relate to the interpretation of an Act of Parliament or subordinate legislation or to the judicial review of, or the consequences of, governmental decisions[143], or where there is no suggestion that anything forming part of proceedings in Parliament was inspired by improper motives or was untrue or misleading and there is no question of legal liability.

`Place out of Parliament'

91. The prohibition in article 9 is not confined to the questioning of parliamentary proceedings in courts. It applies also to any `place out of Parliament'. This is another obscure expression of uncertain meaning. To read the phrase as meaning literally anywhere outside Parliament would be absurd. It would prevent the public and the media from freely discussing and criticising proceedings in Parliament. That cannot be right, and this meaning has never been suggested. Freedom for the public and the media to discuss parliamentary proceedings outside Parliament is as essential to a healthy democracy as the freedom of members to discuss what they choose within Parliament. So the embrace of the phrase is narrower than this, but wider than merely `courts': the whole phrase is `. . .any court or place out of Parliament'.

92. The interpretation of this expression has never been the subject of a court decision. The point has arisen in the context of tribunals of inquiry set up under the Tribunals of Inquiry (Evidence) Act 1921 where both Houses of Parliament resolve `that it is expedient that a tribunal be established for inquiring into a definite matter (specified in the resolution) of urgent public importance'. These tribunals have the same powers as a court, in particular for enforcing the attendance of witnesses, examining them on oath, and compelling the production of documents. Their purpose is described by a recognised constitutional authority as `to investigate certain allegations or events with a view to producing an authoritative or impartial account of the facts, attributing responsibility or blame where it is necessary to do so'.[144] The 1921 Act was passed in the shadow of the Marconi affair and the controversy over what was widely regarded as an unsatisfactory parliamentary inquiry.[145]

93. It seems likely that a court would decide that a tribunal appointed under the 1921 Act is sufficiently similar to a court to constitute a place out of Parliament for the purposes of article 9 and, accordingly, that such a tribunal would be precluded from examining proceedings in Parliament.[146] This conclusion means that an inquiry cannot be set up under the 1921 Act if its purpose is to look into parliamentary matters which may involve examining proceedings in Parliament.[147] Article 9 would bar the tribunal from conducting any such examination. Thus, as matters stand, where proceedings in Parliament may need to be examined, a non-statutory body, lacking the advantages afforded by the 1921 Act, has to be appointed. A recent instance of such a non-statutory tribunal was Sir Richard Scott's inquiry into `arms for Iraq'.[148]

94. This is not satisfactory. Since Parliament already controls the appointment of such a tribunal, we see advantage in the two Houses having a statutory power to waive article 9 in the resolution of appointment.

95. A statutory power of waiver assumes that article 9 does, or may, apply to 1921 Act tribunals. The Joint Committee considers it would also be advantageous to dispel the uncertainties with a statutory definition. The Parliamentary Privileges Act 1987 (Australia) applied the article 9 prohibition to any court or tribunal, and defined tribunal as any person or body having power to examine witnesses on oath. This seems to provide a clear and sensible basis for the future. In general, power to administer oaths is dependent upon statutory authority. The power is conferred on bodies whose proceedings are endowed with a degree of legal solemnity and formality. It means, for instance, that article 9 will apply to coroners' inquests, lands tribunals and industrial tribunals.[149] Beyond such formal tribunals, article 9 will not apply. By this means the boundary can be clearly delineated, with an embargo on examination of parliamentary proceedings in all courts and similar bodies but not elsewhere.

96. The Joint Committee recommends a statutory enactment to the effect that `place out of Parliament' means any tribunal having power to examine witnesses on oath, coupled with a provision that article 9 shall not apply to a tribunal appointed under the Tribunals of Inquiry (Evidence) Act 1921 when both Houses so resolve at the time the tribunal is established.

`Proceedings in Parliament'

97. Since article 9 confers absolute immunity against civil and criminal liability in respect of `proceedings in Parliament', it is important for members and for the public to know what activities are covered by the phrase.[150] Unfortunately, this is a further aspect of article 9 calling for elucidation. No comprehensive definition has been determined either by Parliament or by judicial decision. In 1689, when parliamentary proceedings were much simpler, a definition may have been thought unnecessary. But this is not so when the phrase is applied to present day parliamentary activities and members' activities. In several respects the scope of this expression is not clear today. As noted earlier in this report, this has been recognised as unsatisfactory time and again by successive committees over the last 30 years.[151]

98. The broad description in Erskine May is a useful starting place:

`The primary meaning of proceedings, as a technical parliamentary term, . . . is some formal action, usually a decision, taken by the House in its collective capacity. This is naturally extended to the forms of business in which the House takes action, and the whole process, the principal part of which is debate, by which it reaches a decision. An individual member takes part in a proceeding usually by speech, but also by various recognised forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee, most of such actions being time-saving substitutes for speaking. Officers of the House take part in its proceedings principally by carrying out its orders, general or particular. Strangers also may take part in the proceedings of a House, for example by giving evidence before it or one of its committees, or by securing presentation of a petition.'[152]

99. Thus the House of Commons select committee on the Official Secrets Acts (1939)[153] considered that proceedings in Parliament include `everything said or done by a member in the exercise of his functions as a member in a committee of either House, as well as everything said or done in either House in the transaction of parliamentary business'.[154] This is so even if the acts occur outside the precincts of the Palace of Westminster. For example, select committees sometimes meet elsewhere.

100. The position regarding certain activities is reasonably clear. In this category are debates (expressly mentioned in article 9), motions, proceedings on bills, votes, parliamentary questions, proceedings within committees formally appointed by either House, proceedings within sub-committees of such committees, and public petitions, once presented.[155] These are all proceedings in Parliament. Statements made and documents produced in the course of these proceedings, and notices of these proceedings, all appear to be covered.[156] So are internal House or committee papers of an official nature directly related to the proceedings, and communications arising directly out of such proceedings, as where a member seeks further information in the course of proceedings and another member agrees to provide it.[157] So too are the steps taken in carrying out an order of either House.

101. On the other hand, certain activities of members are not protected, even though they may take place within the House or a committee. A casual conversation between members in either House even during a debate is not protected,[158] nor an assault by one member on another.[159] In 1947 a member of the House of Commons sued a newspaper for defamation because it claimed she had `danced a jig on the floor of the House of Commons' during a division on a bill. Motions were agreed permitting members to attend the trial and give evidence both for and against the member on what had occurred in the Chamber.[160]

102. Repetition, even verbatim repetition, by a member of what he said during proceedings has no protection elsewhere under article 9. Nor does article 9 cover proceedings of committees not appointed or nominated by either House, such as backbench and party committees, or the Ecclesiastical Committee which is a statutory committee.[161] The status of the proceedings of the House of Commons Commission, which also is a statutory body[162], is discussed further below.

Members' correspondence

103. One important area of uncertainty is members' correspondence. There has been long-standing concern about correspondence and other communications undertaken on behalf of constituents by members of the House of Commons. Members of both Houses now engage in many different activities in discharging their parliamentary duties. As well as speaking in debates, participating on committees and asking parliamentary questions, they write letters and make representations to ministers, government agencies and a wide variety of bodies, both public and private. Constituents of members of the House of Commons expect their members to take up their concerns at local and at national level. In recent years members' work has been transformed by a very substantial increase in this type of constituency correspondence. Most of these activities are not protected by parliamentary privilege. Article 9 protects parliamentary proceedings: activities which are recognisably part of the formal collegiate activities of Parliament. Much of the work of a member of Parliament today, although part of his duties as a member of Parliament, does not fall within this description.

104. This issue arose in 1958 in a case concerning a member, Mr George Strauss. He wrote an allegedly defamatory letter to a minister on a matter he might later have wished to raise in the House, namely, criticism of the purchasing policies of the London Electricity Board. The House resolved by a narrow majority that the letter was not a proceeding in Parliament as it did not relate to anything then before the House.[163]

105. Both the 1967 House of Commons committee on parliamentary privilege and its 1977 committee of privileges, as well as the 1970 joint committee on publication of proceedings in Parliament, considered the House's decision was right in law. But all agreed that the argument in favour of correspondence with ministers having the benefit of absolute privilege in defamation actions was so compelling that the law should be changed. The 1977 committee considered it was anomalous for a member's communications with the parliamentary commissioner for administration to enjoy absolute privilege under the Parliamentary Commissioner Act 1967 while his communications with a minister did not.[164] The 1970 joint committee's proposed statutory definition of `proceedings' included:

`all things said, done or written between members or between members and officers of either House of Parliament or between members and ministers of the Crown for the purpose of enabling any member or any such officer to carry out his functions as such . . ..' (our italics).[165]

106. There is force in the view that proceedings in Parliament should include letters to ministers raising matters which could equally well be pursued by parliamentary question and thus be absolutely privileged. The parliamentary question developed as a device for raising specific matters capable of being answered shortly and without the need for debate. The 1967 committee commented:

`Many members now use the parliamentary question as a weapon of penultimate resort to give publicity to its subject-matter when, and only when, they cannot obtain satisfaction by correspondence; yet the House has taken the view that such correspondence does not fall within the ambit of `proceedings in Parliament' . . .. The practical effect of this distinction seems to Your Committee to be indefensible'.[166]

To some extent the distinction has recently been blurred further, now that a question to a minister may elicit a reply in the form of a letter from the head of the executive agency more directly concerned. Even if not `proceedings', such replies, when published in the official report, are protected by the absolute privilege afforded by the Parliamentary Papers Act 1840.

107. An extension of absolute privilege to members' correspondence with ministers would therefore seem logical. But on closer examination it would create problems of principle. Why distinguish between a member's letter to a minister and a member's letter to a public official or a local authority? Should a constituent's correspondence accompanying a member's letter be considered part of a `proceeding'? Should a member's reply to the constituent have the same privilege? When a matter is raised in debate in the House a member may be subject to challenge from other members. Parliamentary questions should be short and to the point, and are subject to rules of order. Letters can be extensive, and if absolutely privileged under article 9 might be used as a means of publishing with impunity defamatory statements or trade secrets. With modern photocopying facilities and e-mail, many people can easily see copies of letters, sometimes inadvertently. One reason why letters to ministers have increased appreciably is the rise in the number of constituency cases ill-suited to proceed by way of written questions, because they are too detailed or for some other reason. If parliamentary privilege were extended to members' correspondence, Parliament would probably become involved in attempting to make rules for correspondence, both constituency correspondence and generally, as it has for questions and other proceedings. The comparison drawn by the 1977 committee[167] is not convincing. Correspondence with the parliamentary commissioner for administration consists mainly of complaints of maladministration by constituents, forwarded by members for investigation by the commissioner under statutory powers. By their nature these complaints may be defamatory, and exposure to defamation actions would unduly obstruct the commissioner's investigations.

108. It remains the case that the distinction between a member's letter and a member's speech or parliamentary question can be somewhat arbitrary. A letter may relate to the same subject matter as an existing proceeding, and may simply be for the member a more convenient or sensible way of pursuing the same objective. It is anomalous that a member who, for example, received information that children were being abused in a named institution, would have the benefit of article 9 if he tabled a question but not if he wrote to the responsible minister first. But the boundary of privilege has to be drawn somewhere, and the present boundary is clear and defensible. Moreover, although members taking up difficult constituency cases often receive threatening letters from solicitors, cases in court are rare. Professor Bradley summed up the position in evidence:

`There was a strong case for [absolute privilege] in 1957 at the time of the Strauss case. . . . That strong case is still there. However, we have had the last 40 years in which the qualified privilege of common law seems to have enabled members of both Houses to carry out their functions satisfactorily'[168].

109. This practical consideration has weighed heavily with the Joint Committee, coupled with the absence of any defensible line between constituency correspondence with a minister and constituency correspondence with others.

110. There is another consideration. Article 9 provides an altogether exceptional degree of protection, as discussed above.[169] In principle this exceptional protection should remain confined to the core activities of Parliament, unless a pressing need is shown for an extension. There is insufficient evidence of difficulty, at least at present, to justify so substantial an increase in the amount of parliamentary material protected by absolute privilege. Members are not in the position that, lacking the absolute immunity given by article 9, they are bereft of all legal protection. In the ordinary course a member enjoys qualified privilege at law in respect of his constituency correspondence. In evidence the Lord Chief Justice of England, Lord Bingham of Cornhill, and the Lord President of the Court of Session, Lord Rodger of Earlsferry, both stressed the development of qualified privilege at law and the degree of protection it provides nowadays to those acting in an official capacity and without malice.[170] So long as the member handles a complaint in an appropriate way, he is not at risk of being held liable for any defamatory statements in the correspondence.[171] Qualified privilege means a member has a good defence to defamation proceedings so long as he acted without malice, that is, without some dishonest or improper motive.[172]

111. Admittedly, qualified privilege is less effective than the sweeping, absolute protection afforded by article 9, in two respects. Article 9 provides a defence not only to defamation claims but also to any claim that by sending the constituent's letter to the minister the member committed an offence under the Official Secrets Acts or a breach of a court order. Secondly, defamation proceedings brought contrary to article 9 will generally be dismissed peremptorily, without any need for a trial, as it will be obvious from the outset that they are bound to fail. With a defence of qualified privilege, if there is sufficient prima facie evidence of malice the case will ordinarily proceed to trial for a verdict by the jury. So a member may be put to the inconvenience and expense of defending an action before he is vindicated.

112. Constituency correspondence has burgeoned over the last 30 years, but since Strauss there have been remarkably few, if any, instances of defamation actions against members who were acting on behalf of their constituents. We recommend that the absolute privilege accorded by article 9 to proceedings in Parliament should not be extended to include communications between members and ministers.

Members' drafts and notes

113. Drafts and notes frequently precede speeches and questions, and members often need assistance and advice in preparing them. By necessary extension, immunity accorded to a speech or question must also be available for preparatory drafts and notes, provided these do not circulate more widely than is reasonable for the member to obtain assistance and advice, for instance from a research assistant. It would be absurd to protect a speech but not the necessary preparatory material. The same principle must apply to drafts of evidence given by witnesses. This principle must also apply to drafts of speeches, questions and the like which in the event are not used. A member cannot always catch the Speaker's eye, or he may change his mind.

114. This approach accords with the view expressed by the select committee of the House of Commons on the Official Secrets Acts (1939). The appointment of this committee arose out of the action taken by a member, Mr Duncan Sandys, in threatening to table a question regarding the inadequacy of London's anti-aircraft defences. The draft question included information, classified as secret, about the number of available guns and their state of readiness. Mr Sandys sent the draft to the minister. In its report the committee said there were some:

`communications between one member and another, or between a member and a minister, so closely related to some matter pending in, or expected to be brought before the House, that though they do not take place in the chamber or a committee room they form part of the business of the House, as, for example, where a member sends to a minister the draft of a question he is thinking of putting down or shows it to another member with a view to obtaining advice as to the propriety of putting it down or as to the manner in which it should be framed'.[173]

The House agreed with this conclusion.[174]

Assistance by House staff

115. Memoranda from the Librarian of the House of Commons and from the staff side of the Whitley Council showed there is concern over the degree of legal protection afforded to the research briefs, notes and other advice prepared by staff for members.[175] The House of Commons library, in particular, often briefs members on the background to complicated and sensitive constituency cases, as well as providing research for contributions in the House or in committee. It is our intention that all material directly related to proceedings in Parliament should be protected by article 9, such as preparatory material related to a member's participation in debate or in committee. Material which has no direct connection with proceedings in Parliament is not protected.

116. To extend absolute privilege to all research work carried out for members by House staff would raise difficulties similar to those applying to members' correspondence. Here also the degree of protection provided by qualified privilege at law should not be underestimated. We doubt whether any advice given by the libraries and other departments to members of either House could exhibit any credible sign of malice. However, we are concerned at the extent to which members unthinkingly include in envelopes to constituents, for example, a brief prepared by a member of staff which, to assist the member, may have been written in frank terms. This has caused difficulties for some staff, and occasionally a threat of litigation. Members should make use of the advice, not disseminate it.

117. There is another category of material which does not fall within article 9 but can nonetheless claim to be within Parliament's right to control its own affairs (exclusive cognisance) and therefore protected under that heading.[176] This comprises work done in providing services under the direction of the House or its presiding officer. Examples are arrangements made by Black Rod and the Serjeant-at-Arms for the security and proper functioning of the two Houses, and action taken by either House to implement decisions of the Speaker or relevant committee on, for instance, the use of committee rooms, or the rules governing parliamentary groups.

Assistance by personal staff

118. Members frequently employ personal staff and research assistants of their own to assist with their parliamentary duties. The material produced for members by their staff and assistants may sometimes be protected by parliamentary privilege, as material directly related to proceedings in Parliament. But, as with House staff, other material enjoys no parliamentary privilege.

Registration of members' interests

119. Another area of uncertainty concerns registration of members' interests. Both Houses have procedures for registration of members' personal pecuniary interests. These procedures are part of the machinery brought into being by each House for the better conduct of its business. They are under the sole control of each House and not subject to supervision by courts of law. We consider these procedures also qualify, or should qualify, for the protection afforded by article 9 to proceedings in Parliament.

120. This applies as much to the registers themselves as to the steps leading up to registration. The registers, which are an integral part of the procedures, are open to inspection by the public, and in both Houses the register is published annually. Moreover, any member of the public may complain to the parliamentary commissioner for standards or, in the case of the House of Lords the sub-committee on Lords' interests, that a member has not properly registered his interests. None of these characteristics deprives the registers of their status as a proceeding in Parliament. Publication of a speech in the official report does not deprive a speech in the House of the protection of article 9. Nor does the ability of the public to lodge complaints that a member is in breach of the code of conduct deprive disciplinary proceedings of their status as parliamentary proceedings.

121. This appraisal of the status of the registers of interests, if correct, does not prevent the registers from ever being referred to or used in court proceedings. As with Hansard, so with the register, the fact that an entry exists or does not exist could be established and used in court, as noted above.[177] However, the status of the registers as part of a proceeding in Parliament prevents a member from being examined in court on his reasons for registering or not registering his interest. It is not open to a court to adjudicate upon whether a member should have registered a particular interest, or to draw an adverse inference from his failure to do so. In like fashion, the court may not adjudicate upon whether a member was at fault in failing to declare an interest in a debate or proceeding in the House or a committee.

122. In this regard the court decision in Rost v Edwards[178] is a cause for concern. In 1989 Mr Peter Rost, a member of Parliament, sued the writer of an article in The Guardian newspaper for libel in asserting that Mr Rost had been seeking to sell confidential information obtained by him as a member of the House of Commons select committee on energy. As part of a defence of justification, the defendants asserted that Mr Rost should have registered his parliamentary consultancies. In response Mr Rost wished to establish, by reference to the published rules and to Erskine May, the requirements laid down by the House for the registration of pecuniary interests, and to call evidence on the nature of his consultancies and the reason why he had not registered them. The Solicitor General submitted that the House of Commons register of members' interests and the related practice and procedure formed part of the proceedings of Parliament. The trial judge rejected this submission, and held that registration of members' interests is not a proceeding in Parliament.[179]

123. It would not be appropriate for us to venture a view on the correctness of this decision as a matter of law.[180] But we are in no doubt that, if this decision is correct, the law should be changed. As the law now stands, it is open to a court to investigate and adjudicate upon an alleged wrongful failure to register. That ought to be a matter for Parliament alone, in the same way as any other alleged breach of its rules is a matter for Parliament alone. We recommend that legislation should make clear that keeping the registers (and hence the registers themselves) are proceedings in Parliament.

124. The House of Commons also maintains three other registers which have been open for public inspection since autumn 1998. These relate to the relevant pecuniary interests of parliamentary journalists, members' staff and all-party and parliamentary groups.[181] The recommended clarification should apply also to these and any other register of interests prescribed by resolution of either House.

Complaints against members

125. Complaints relating to the conduct of members, whether from other members or the public, are made in the House of Commons to the parliamentary commissioner for standards and in the House of Lords to the committee for privileges (which refers them to its sub-committee on Lords' interests). The commissioner is an officer of the House of Commons, and her duties include receiving and, if she thinks fit, investigating complaints, and reporting to the committee on standards and privileges. Investigation and adjudication of complaints fall squarely within the concept of proceedings in Parliament. Since Rost v Edwards the House of Commons has agreed to a written code of conduct on the basis of which any complaint against a member of that House will be judged. We consider this code forms part of proceedings in Parliament and, like the register of members' interests, should not be questioned in the courts.

126. The only area of doubt concerning complaints relates to the status of a complaint the commissioner declines to take up on the ground that it is frivolous, for example, because its only basis is an unsubstantiated newspaper story or television report. We are of the view that, once taken up for investigation, a complaint partakes of the nature of a parliamentary proceeding: it becomes part of that proceeding, along with any correspondence which then takes place and any oral evidence which is produced. Until then, a complaint cannot be regarded as part of a parliamentary proceeding or entitled to the absolute immunity that accompanies those proceedings. We recommend this should be made clear in any statutory definition of parliamentary proceedings.

A statutory definition

127. A statutory definition of proceedings in Parliament will not solve all problems, but it will remove some areas of confusion. We recommend that the uncertainty in these areas should be ended without further delay. Section 13(4) of the Defamation Act 1996 contained a partial definition for a specific purpose. Australia has enacted a definition in section 16(2) of the Parliamentary Privileges Act 1987 (Australia). Annex B to this report sets out the definition recommended by the 1970 joint committee and the definition enacted in Australia. Annex A contains the definition used in the Defamation Act 1996.

128. The 1970 joint committee's recommendation has been endorsed by other select committees, but it is open to criticism. Although long and detailed, it is still not an exhaustive definition: it is expressed to be without prejudice to the generality of the expression `proceedings in Parliament', and gives no guidance on what that expression is broadly aimed at. Paragraph 1(b) is expressed in wide terms which are intended to include members' correspondence with ministers. The definition in the Parliamentary Privileges Act 1987 (Australia) provides a better model. It is more concise, and gives a broad overall definition of proceedings in Parliament as `all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee'. The key expression `business of a House' is left undefined but is still useful in conveying the distinction between the collegiate work of the House and the work of individual members, such as constituency correspondence. The phrase `or incidental to' might read better as `or necessarily incidental to'. Otherwise it may be too loose.

129. The Joint Committee recommends the enactment of a definition on the following lines:`(1) For the purposes of article 9 of the Bill of Rights 1689 `proceedings in Parliament' means all words spoken and acts done in the course of, or for the purposes of, or necessarily incidental to, transacting the business of either House of Parliament or of a committee. (2) Without limiting (1), this includes: (a) the giving of evidence before a House or a committee or an officer appointed by a House to receive such evidence (b) the presentation or submission of a document to a House or a committee or an officer appointed by a House to receive it, once the document is accepted (c) the preparation of a document for the purposes of transacting the business of a House or a committee, provided any drafts, notes, advice or the like are not circulated more widely than is reasonable for the purposes of preparation

(d) the formulation, making or publication of a document by a House or a committee (e) the maintenance of any register of the interests of the members of a House and any other register of interests prescribed by resolution of a House. (3) A `committee' means a committee appointed by either House or a joint committee appointed by both Houses of Parliament and includes a sub-committee. (4) A document includes any disc, tape or device in which data are embodied so as to be capable of being reproduced therefrom.'

Disputes on the application of article 9

130. Regardless of whether a definition of proceedings in Parliament is enacted, disputes will continue to arise in the course of court proceedings over the availability of article 9 as a defence in the circumstances of the case. A simple instance is where a member is being sued for defamation. In his defence he claims he wrote the libellous letter in the course of proceedings in Parliament. The plaintiff disputes this. The judge hearing the case is then called upon to decide this issue.

131. The Joint Committee has considered whether, when this type of dispute arises over the application of article 9, the issue should continue to be resolved by the court or, instead, there should be some other and possibly more expert forum, but independent of Parliament. The Lord Chief Justice of England suggested[182] as a possibility that if Parliament felt such a mechanism were required the judicial committee of the Privy Council might be suitable. Its decisions would be those of a court, and over time it would build up a body of precedents. Indeed, references to the Privy Council in this field have already occurred. In the 1950s during its consideration of the Strauss case the House of Commons referred an issue involving the interpretation of the Parliamentary Privilege Act 1770 to the judicial committee.[183]

132. The Joint Committee explored this suggestion with other witnesses[184], and also considered the possibility of references to a body based on the judicial committee but whose membership would include former members of the House of Commons. We do not recommend these proposals. Our view is that the mechanism of a reference to the judicial committee is probably better suited to giving the House advice on issues involving points of principle. When issues of principle arise, either House may seek such advice by a simple resolution, on the basis of which the Crown will make a reference to the judicial committee of the Privy Council under the Judicial Committee Act 1833. To introduce an additional stage into a libel action, for instance, when there may be no point of principle at stake, would cause delay and expense for the parties. Moreover, it might not be the best course to remove the jurisdiction from the trial judge who, unlike the judicial committee, would be in possession of all the facts. If a point of principle were to arise in court proceedings the judge would always be able to turn to the Attorney General and invite his assistance on issues concerning article 9. If a point were taken by either House of Parliament rather than the court, the House could seek to intervene in the case, either by briefing counsel directly or via the Attorney General.

Scotland and Northern Ireland

133. The Scottish `Claim of Right' of 1689 contained a provision narrower in scope than article 9. It provided that `for redress of all grievances, and for the amending, strengthening and preserving of the laws, parliaments ought to be frequently called and allowed to sit and the freedom of speech and debate secured to the members'.[185] The Bill of Rights was not enacted in any part of Ireland, although the Irish Parliament prior to the Union assumed similar privileges to the Parliament of Great Britain, and the Northern Ireland Parliament enjoyed the same privileges as Westminster by virtue of the Government of Ireland Act 1920.

134. Doubts have been raised on whether a law passed for England and Wales in 1689 would apply in other parts of the United Kingdom.[186] Despite the absence of case law, both the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland, Sir Robert Carswell, were convinced that the law would be interpreted in Scotland and Northern Ireland so as to reflect closely the interpretations placed upon parliamentary privilege by the English courts, even though the interpretation in every case might not be precisely the same.[187] Although an element of doubt must remain, the Joint Committee has proceeded throughout this report on the basis that the privileges of the United Kingdom Parliament will be interpreted and applied in a similar fashion throughout the United Kingdom. Nevertheless, if there were to be legislation on privilege, we recommend that the extent of freedom of speech of the United Kingdom Parliament in the laws of Scotland and Northern Ireland should be expressly harmonised with the law of England and Wales. The opportunity should also be taken to declare that the other existing rights and immunities accorded under the law of England and Wales to the two Houses, their members and officers are likewise applicable throughout the United Kingdom.

--------------------------------------------------------------------------------94 United Kingdom cases are briefly described in Erskine May, 22nd ed (1997), chapters 6 to 11. However, there are many Commonwealth cases. For Canada, Australia and New Zealand, see the memoranda from the Parliaments of those countries printed in vol 3 to this report. A recent specialist account is Parliamentary Privilege in Canada, 2nd ed (1997), by J P Joseph Maingot QC, which contains references to many Commonwealth cases in addition to those of Canada. Back

96 Writing of parliamentary privilege in (probably) the late 1640s, the Earl of Clarendon (who as Edward Hyde had been a member of both the Short and Long Parliaments) described the privilege as he believed it to have properly existed before the civil war as follows. `If a man brings an information, or an action of the case, for words spoken by me, and I plead, that the words were spoken by me in Parliament, when I was a Member there; and that it is against the privilege of Parliament, that I should be impleaded in any other place, for the words I spake there, I ought to be discharged from this action or information, because this privilege is known, and pleadable at law: but that judge can neither punish nor examine the breach of privilege, nor censure the contempt. And this is the true and proper meaning of the old received axiom, that they are judges only of their own privileges' (Clarendon, A True Narration of the Rebellion and Civil Wars in England, Book IV). Back

102 So called because TC Hansard was first the printer, and later the publisher, of the official series of parliamentary debates covering both Houses, inaugurated by William Cobbett in 1803: Erskine May, 22nd ed (1997), p 220. Back

103 Except for evidence on what the House had done taken from the Journals of the House. References occur at least as early as 1695, and regularly thereafter. Under section 3 of the Evidence Act 1845 (which does not extend to Scotland), the Journals were to be admitted as evidence by the courts without formal proof being given of their accuracy. The Journals of the House of Lords have always been held to be public records. Back

106 Pepper (Inspector of Taxes) v Hart [1993] AC 593. For an account of the background see Erskine May, 22nd ed (1997), p 91; Francis Bennion Statutory Interpretation, 2nd ed (1993), Supplement. Pepper v Hart changed a very old constitutional practice. Thus Miller v Taylor (1769) 4 Burr 2303 at 2332: `the sense and meaning of an Act of Parliament . . . must be collected from what it says . . . not from the history of changes it underwent in the House where it took its rise. That history is not known to the other House or to the Sovereign'. Similarly, in Edinburgh and Dalkeith Railway Co. v Wauchope (1842) 8 Cl & Fin 710 at 723-724: `no court of justice can inquire into the mode in which it was introduced to Parliament, nor what was done previous to its introduction, or what passed in Parliament during the various stages of its progress through both Houses.' These and other cases are quoted in Geoffrey Marshall `Hansard and the interpretation of statutes' in The Law and Parliament ed D Oliver and G Drewry (Butterworths 1998). Back

109 Section 15 AB of the Acts Interpretation Amendment Act 1901 (Australia) as amended in 1984 provides that if any material not forming part of the Act is capable of assisting the ascertainment of the meaning of the provision of the Act, consideration may be given to that material to confirm its meaning, or to determine the meaning when the provision is ambiguous or obscure or where the ordinary meaning leads to results that are manifestly absurd or unreasonable. See too, Historic House Hansard, 3 April 1984, pp 1267 ff, 3 May 1984, pp 1746-1797. A similar approach has been adopted in New Zealand in cases such as Howley v Lawrence Publishing Co. Ltd [1986] 1 NZLR 404; and New Zealand Maori Council v Attorney General [1987] 1 NZLR 614. See Philip A. Joseph, Constitutional and Administrative Law in New Zealand (1993), pp 371-2. Back

110 [1989] AC 66. The Equal Pay (Amendment) Regulations 1983 introduced a new section into the Equal Pay Act 1970 to comply with the decision of the European Court of Justice in EC Commission v United Kingdom [1982] ICR 578. Back

111 Vol 2, p 124. A description by Professor Anthony Bradley of the development of judicial review and its relationship with parliamentary proceedings is to be found partly in the memorandum accompanying his oral evidence (vol 2, pp 122-127) but principally in a separate memorandum by him published in vol 3, pp 145-150. Back

124 Hamilton v Hencke; Greer v Hencke (21 July 1995). At about the same time an unrelated action by another member of Parliament, Mr Rupert Allason, was stayed for a similar reason: Allason v Haines (14 July 1995). Back

127 [1995] 1 AC 321. A former New Zealand government minister alleged that he had been defamed in a television broadcast. The TV company sought to prove the allegations by relying on statements and actions made outside Parliament and also in the House of Representatives. The judge struck out the allegations which he held might impeach or question proceedings in Parliament, in contravention of article 9. The court of appeal upheld the decision but ordered the plaintiff's action to be stayed unless and until privilege was waived by the House and the individual members concerned. The House privileges committee decided that the House had no power to waive privilege. The proceedings were permitted to continue because the privileged material was comparatively marginal and there could still be a fair trial. The judicial committee's decision supported the court of first instance. See judgment of Smellie J in the High Court of New Zealand, A 785/90 (24 June 1992); judgment in the New Zealand Court of Appeal CA 161/92 (2-5 November 1992). Back

129 The section was inserted by the Lords as an amendment to the Defamation Bill [Lords] which it considered in March, April and May 1996. The Commons debated the provision in May and June 1996 and agreed to it. See HL Deb, 8 March 1996 (Second Reading); 2 April 1996 (Committee of the Whole House); 16 April 1996 (Report); and 7 May 1996 (Third Reading). See also HC Deb, 21 May 1996 (Second Reading); 13 June 1996 (Standing Committee A); and 24 June 1996 (Report). Back

130 e.g. QQ 376-381, 498-502, 577, 785; and memoranda by The Lord Chief Justice of England, vol 2, p 110; the former Parliamentary Commissioner for Standards, vol 2, p 219; Dr Geoffrey Marshall, vol 2, p 204; the Guild of Editors, vol 3, p 16; the Newspaper Society, vol 3, p 18; and The News of the World, vol 3, p 45. See too `A Question of Privilege: The crisis of the Bill of Rights', by Lord Simon of Glaisdale in The Parliamentarian, April 1997. Back

131 The Commons has recognised that there could be extremely serious cases which involved improper obstruction of the functions of Parliament and serious reflections on the occupants of the Chair, where the House might wish to use its penal powers: see HC (1967-68) 34, paragraphs 42-45, and Committee of Privileges, Third Report, HC (1976-77) 417, paragraphs 5-6. Back

132 [1995] 1 AC 336 (see paragraph 65 above). Back

133 The Parliamentarian, April 1997. Back

134 Memorandum, paragraph 5, vol 2, p 204. Back

135 For exceptions where ministerial decisions are involved, see paragraphs 46-59. Back

136 See memorandum by The News of the World, vol 3, p 45. Back

137 Q 52; and paragraph 13 of his memorandum, vol 2, p 4. See also paragraphs 246, 252-259 below. Back

138 See paragraph 40 above. Back

139 Q 44. Back

140 Paragraphs 45, 55, 59 and 73 above. Back

141 Paragraphs 86 below. Back

142 Paragraph 66. Back

143 The position in Australia is not wholly clear. Judicial review proceedings were not expressly excepted from section 16 of the Parliamentary Privileges Act 1987 (Australia), and the interpretation of section 16 has not been considered by the High Court. The view of the Australian Attorney General, the Hon. Daryl Williams AM QC MP, is that the Act has not proved inhibiting to the judicial review of administrative action and that, given the rules and process of administrative decision-making in Australia, it is unlikely that an applicant for judicial review would suffer from being unable to rely on privileged parliamentary material to challenge a minister's decision: see his letter in vol 3, pp 178-179. In response to a request from the Joint Committee, Professor G J Lindell of the University of Melbourne has examined this matter in some detail: see vol 3, pp 164-177. Back

145 The affair concerned allegations that ministers bought shares in the Marconi company when they knew that action by the government would mean that the share price would rise. See Select Committee on Marconi's Wireless and Telegraph Company: Special Report HC (1913) 152; HC (1913) 217; resolution of the House, CJ (1913) 347. Back

146 Letter to the chairman of the Joint Committee from the Attorney General, vol 3, p 178. Back

147 The application of article 9 does not appear to have been considered by the Royal Commission on Tribunals of Inquiry, chaired by Lord Salmon when it reviewed the working of the Act in 1966 (Royal Commission on Tribunals of Inquiry: Report of the Commission (Cmnd 3121). See also, Barry Winetrobe, `Inquiries after Scott: the return of the tribunal of inquiry': Public Law, spring 1997. Back

148 See Report of the Inquiry into the export of Defence Equipment and Dual-use Goods to Iraq and related Prosecutions: HC (1995-96) 115 (5 vols and CD-Rom). Back

149 However, see paragraphs 56-59 above. Back

150 `Proceedings in Parliament' without definition is used in several statutes: e.g. section 41 of the Copyright Act 1986; section 26 of the Public Order Act 1986; section 6 of the Human Rights Act 1998. Section 1 of the Parliamentary Papers Act 1840 uses the undefined expression `proceedings' as part of the phrase `reports, papers, votes or proceedings of either House of Parliament'. Back

151 For references see footnote 18 above. Back

152 22nd ed (1997), p 95. While referring to this definition, J P Joseph Maingot QC, in Parliamentary Privilege in Canada (1997), p 80 gives this supplementary definition: `As a technical parliamentary term, `proceedings' are the events and the steps leading up to some formal action, including a decision, taken by the House in its collective capacity. All of these steps and events, the whole process by which the House reaches a decision (the principal part of which is called debate), are `proceedings''. Back

153 First Report from the Select Committee on the Official Secrets Acts HC (1937-38) 173; Report from the Select Committee on the Official Secrets Acts HC (1938-39) 101. Back

156 Although the courts consistently refuse to hear evidence questioning debate, practice in respect of other proceedings varies: most recently in Allason v Campbell (1996) TLR 279 the court heard detailed evidence on who initiated and participated in the drafting, signing and tabling of an early day motion, and the reasons for its coming into being (Erskine May, 22nd ed (1997), p 95, fn 4). Back

157 On 14 July 1958 the Speaker ruled that a matter which arises from a question on the order paper is itself a proceeding in Parliament: HC Deb 591 cc 807-809. Back

158 Coffin v Coffin (1808) 4 Mass 1; HC (1938-39) 101. This is referred to by S.A. de Smith in `Parliamentary Privilege and the Bill of Rights' MLR Sept. 1958 as `a decision of strong persuasive authority' (p 479). Back

159 Though such an action would also be considered a serious contempt. See Report of the Committee of Privileges HC (1947) 36. Back

160 Braddock v Tillotsons Newspapers Ltd [1949] 2 AER 306. Mrs Braddock did not succeed in her action. For the two petitions for leave for witnesses to appear see CJ (1948) 14. Back

161 Appointed under the Church of England (Assembly) Powers Act 1919. It consists of an equal number of members of both Houses, nominated by the Lord Chancellor and the Speaker: see Erskine May, 22nd ed (1997), p 597. Back

162 Established by the House of Commons (Administration) Act 1978: For both the Act and the Commission see Erskine May, 22nd ed. pp 202-204. See too paragraph 248 below. Back

163 Resolution of the House of Commons, 8 July 1958: `That this House does not consider that Mr. Strauss's letter of the 8th day of February 1957 was a proceeding in Parliament and is of opinion therefore that the letters from the Chairman of the London Electricity Board and the Board's Solicitors constituted no breach of Privilege': CJ (1957-58) 260; HC Deb 591 cc 207-346. This resolution had the effect of rejecting the contrary recommendation contained in the report of the Committee of Privileges. The Attorney General, a member of the Privileges Committee, opposed the findings of the report: HC (1956-57) 305, pp xxix-xxxi. Back

164 HC (1976-77) 417, paragraph 7 (the paragraph containing this recommendation was not put to the House of Commons for approval). Back

165 Second Report HL (1969-70) 109; HC 261, p 5, paragraph 1(b) of the proposed statutory definition. For a judicial consideration of a member's functions, other than in relation to proceedings, see Attorney General of Ceylon v de Livera [1963] AC 103 (judicial committee of the Privy Council). Back

166 HC (1966-67) 34, p xxvii, paragraph 86. Back

167 HC (1976-77) 417, paragraph 7. Back

168 QQ 512, 462. Back

169 Paragraphs 36-41 above. Back

170 QQ 412-416, 648; vol 2, p 160, paragraph 5. Back

171 Q 416. Back

172 R v Rule [1937] 2 KB 375 (complaint by a constituent to an MP about the conduct of a policeman and a magistrate and asking for his assistance in bringing the matter to the attention of a minister: a member had sufficient interest in the subject matter of the complaint to permit the occasion of the publication of the complaint to be privileged at common law); Beach v Freeson [1972] 1 QB 14 (letters by a member to the Lord Chancellor and the Law Society complaining of the conduct of a solicitor, based on representations from a constituent. A member of Parliament had both an interest and a duty to communicate appropriately any substantial complaint from a constituent concerning a professional person or firm). Back

173 Report of the House of Commons Select Committee on the Official Secrets Act (1939): HC (1938-1939) 101, paragraph 4 (our emphasis in italics). Back

174 CJ (1938-39) 480. Back

175 Vol 3, pp 22-23 and 49. The Whitley Committees (there is one for each House) are joint bodies of management and staff. Their general object is to secure cooperation between the employer and those staff represented by trade unions in matters affecting the departments of the House and the welfare of staff, and to provide machinery for dealing with grievances, provided that the privileges of the House are not affected thereby. Back

179 The Attorney General lodged an appeal against this part of the judgment, but it was never heard as the parties reached an agreement. Back

180 The judge refused to permit Mr Rost to call evidence that the article had led to his deselection from a standing committee and had adversely affected his chances of being appointed chairman of the select committee on energy, on the ground that this would involve examining proceedings of the House. The correctness of this decision was subsequently doubted by the judicial committee of the Privy Council in Prebble v Television New Zealand [1995] 1 AC 321, 337, as betraying some confusion between the right to prove the occurrence of parliamentary events (see paragraph 41 above) and the embargo on questioning their propriety. This case is another example of the difficulties confronting a member who seeks to clear his name in respect of a statement which he considers defamatory regarding his parliamentary behaviour: see paragraphs 60-62 above. Back

181 The registers are more fully described in the Ninth Report of the Committee of Standards and Privileges, Public access to registers of interests, HC (1997-98) 437. Back

182 Vol 2, p 108. Back

183 See paragraphs 319-322 below; HC (1956-57) 305, paragraph 19; HC Deb 529 cols 397-398 (4 December 1957); Re Parliamentary Privilege Act 1770 [1958] AC. 331; Cmnd 431. There are at least two other occasions when, at the instance of the House of Commons, the Crown has made a special reference to the judicial committee under section 4 of the Judicial Committee Act 1833. Both references sought opinions on the interpretation of statutes imposing particular disqualifications for sitting and voting in the House: Re. Sir Stuart Samuel [1913] AC 514; Re. Rev J. G. MacManaway [1951] AC 161. In each case the House adopted the advice of the judicial committee. On this and the Strauss case generally, see S. de Smith `Parliamentary Privilege and the Bill of Rights', Modern Law Review, vol 21, No 5, September 1958. Back